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Lucas v Barking, Havering and Redbridge Hospitals NHS Trust, Court of Appeal, 23 July 2003

29 July 2003
The issues

Disclosure – expert evidence – whether documents provided to an expert were disclosable.

The facts

The Claimant brought an action for personal injuries. With his Particulars of Claim he served two experts reports. Both reports referred to a witness statement that the Claimant had given and a previous report of an expert. The Defendants relying on CPR 31.14(2) asked for those documents to be disclosed. (CPR 31.14(2) reads Îsubject to rule 35.10(4), a party may apply for an Order for inspection of any document mentioned in an experts report which has not already been disclosed in the proceedings’. Part 35.10 provides that whilst an expert’s report must state the substance of all material instructions, and whilst the instructions shall not be privileged against disclosure, the Court will not in relation to those instructions order disclosure of specific documents÷..) The Defendants obtained an Order from the Master, the Claimant appealed. The Claimant relied upon, amongst other matters the decision of Morland J in Taylor v Bolton Heath Health Authority in which the Judge preferred a very narrow construction of the word Îinstructions’ and held that this amounted to no more than the words telling the expert what to do and excluded the material upon which he was asked to comply with his instructions.

The decision

1. ÎInstructions’ should be interpreted widely. They included the information supplied by the Claimant and all the material which a solicitor places in front of the expert in order to gain advise. The rules required a full setting out of the facts in the instructions and to that extent privilege is waived. The Court however will only make an order for disclosure of a document where there are reasonable grounds to believe that the statement of instructions is inaccurate or incomplete. Thus the instructing party is protected from a waiving of privilege in respect of specific documents.

2. In this case there was no suggestion that the material instructions were in any way inaccurate. Therefore the Claimant was entitled to the protection of CPR 35.10(4). On these facts therefore whilst Taylor v Bolton was no longer good law the disclosure would be refused and the appeal allowed.

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