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Carlson v Townsend, Court of Appeal

25 April 2001
The issues

Pre Action Protocol – Instruction Of Experts – Failure To Disclose

The facts

The Claimant gave the Defendant a list of three Orthopaedic Surgeons. The Defendant objected to one of the three. The Claimant thereafter instructed one of the remaining two, Mr Trevett. Having obtained Mr Trevett’s report the Claimant declined to disclose it and instructed Dr Smith, not originally named in the list. The District Judge ordered the Claimant to disclose Mr Trevett’s report. On Appeal the Judge allowed the Claimant’s Appeal against the Order. The Defendant appealed to the Court of Appeal.

The decision

Mr Trevett had been instructed pursuant to the protocol. The insurer had regarded the instruction as being on a joint basis. The Claimant’s solicitors denied that it was on a joint basis. The District Judge found no distinction between the joint selection and joint instruction. The Judge took the contrary view. The Judge also found that the protocol imposed no requirement for the expert to be jointly instructed and that nothing in it required disclosure. The Court of Appeal took the view: –

1. That the protocol did not require disclosure of medical reports obtained under it;

2. Withholding Mr Trevett’s report did not constitute non compliance with the protocol although the instruction of Dr Smith did;

3. The Claimant still had to obtain the permission of the Court to call Dr Smith and the Defendant would almost certainly in these circumstances be permitted to call an expert of its choice.

The Court would bear in mind that at least one expert, Mr Trevett, had reported less favourably to the Claimant’s cause than Dr Smith. The Court did not have available to it however the sanction of overriding the Claimant’s privilege.

Appeal dismissed

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