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Jackson v Marley Davenport Ltd, Court of Appeal, 9 September 2004

16 September 2004
The issues

Expert Evidence – Disclosure – privilege – draft report

The facts

Claimant brought an action for personal injuries following a fall from a ladder whilst on a site to which he had been sent by the Defendant Company. Directions were given including Orders that each party have leave to obtain Expert evidence. The Claimant instructed an Expert in Forensic Pathology. An earlier report had been prepared by the same Expert prior to a conference with the Claimant’s lawyers. After the conference a final report was served on the Defendant. In that report the Expert mentioned that he had gained additional information which had lead him to form his conclusion and two previous letters of instructions. The Defendant formed a view that the Expert may have changed his view between the earlier report and the report that was served. It applied for disclosure of the earlier report on the basis that the entirety of the Expert’s evidence should be before the Court. The District Judge granted that application. On Appeal the Circuit Judge refused disclosure overruling the District Judge. The Defendant appealed further to the Court of Appeal.

The decision

CPR 35.13 did not give the Court power to Order disclosure of an earlier report prepared by an Expert in the preparation of a final report.

Such a report had the benefit of litigation privilege.

35.10.3 CPR provided that the Expert’s report would state the substance of all material instructions whether written or oral on the basis on which the report was written. This was a limited exception to the litigation privilege with no intention to abrogate the privilege attached to earlier draft reports.

Appeal dismissed

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