Morris v Bank of India, Chancery Division, 15 November 2001

Procedure – Evidence – Disclosure of Instructions.

The parties to this action had to disclose banking evidence following which a memorandum of agreed and disputed issues was to be produced prior to exchange of witness statements. The reports were exchanged. Claimants required replies to questions. Claimants were not satisfied with the replies contending amongst other matters that the replies raised factual allegations not made in the Pleadings or the Disclosed Documents and that the Report did not identify all the instructions on which it had been based. The Defendant’s argued that it was inappropriate to order the production of draft witness statements because they were privileged. The Claimants sought an Order that the Defendants serve a document containing all of the underlying information relied upon by their banking expert.

1. An expert report should contain a statement setting out the contents of all instructions relied upon.

2. In this case the Experts Report had to be exchanged prior to factual witness statements.

3. The Report was defective because it did not contain a statement of the substance of material instructions.

4. It was therefore open to the Court to order disclosure of the Instructions given for the purpose of the Report.

5. If the expert had been provided with draft witness statements which he had been told not to refer to but to use the information in them for his report then the witness statements would lose their privilege because they then formed part of the instructions.

Claimants were entitled to the Order sought.

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