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Are your communications with an expert disclosable?

2 September 2016

The Court has ruled in the case of Allen Tod Architecture Ltd (C) v Capita Property and Infrastructure Ltd (D) [2016] EWHC 2171 (TCC) that as a condition of being granted permission to instruct a new expert (having lost confidence in the first expert instructed) C had to provide disclosure of the first expert’s preliminary report, notes and other documents setting out his views on the case.

C brought a claim for professional negligence against D, a structural engineer, relating to the redevelopment of a property. Permission for an expert structural engineer was given and C instructed expert A. However, C lost confidence in A’s management of the case and instructed a new expert (B).

D sought specific disclosure from C of documents and reports prepared by A. In response, C disclosed some but not all documents containing A’s opinions, stating that what they had provided to D was sufficient and any other documents were privileged.

D applied for an order that permission for C to rely upon the expert evidence of B should to be conditional upon C disclosing further information of A.

HHJ David Grant granted D’s application and granted disclosure.

Parties need to keep in mind that it is not just expert reports that may need to be disclosed, communications with experts or documents prepared by them may also have to be disclosed.

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