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Bond v Ferguson, Torquay and Newton Abbot County Court, 11 October 2004

15 October 2004
The issues

Privilege; expert evidence; whether improperly obtained evidence may be relied upon

The facts

Claimant had a road traffic accident on the 27th June 2001 in which he suffered back injuries and psychiatric after effects.

Liability was admitted by insurers.

Pre-action, an agreed expert orthopaedic report was obtained but never disclosed. It was common ground that it was generally unfavourable to the claimant. The claimant instructed a second expert report which was disclosed and which stated that the claimant had suffered a two-year exacerbation of a pre-existing back problem.

Insurers obtained a copy of the undisclosed report directly from the expert, on payment of a fee.

Claimants were aware that the defendants had obtained the report from August 2002; they objected in correspondence but made no applications pre or post issue. The defence was filed in June 2004 and made reference to reliance on the first experts report.

The matter came before the court on a cmc; no application was before the court but in support of requested directions from the defendant that they are allowed to rely on the first expert, questions of disclosure and privilege arose. The Claimant argued that the report was privileged and that that privilege had not been waived. The Defendant accepted that the report had been privileged, and that that privilege had not been waived, but that the claimants were not in a position to reclaim the report as it was in the before the court and that they had not acted promptly in reliance on that privilege ( Ashburton-v-Pape; Pizzey-v-Ford Motor Coy); and that if it had been obtained improperly, then the balancing exercise favoured the defendant. Moreover the new evidence that the claimant had adduced showed on his best case a two year exacerbation-which period had already passed. Therefore the defendant had a difficulty in obtaining other retrospective evidence

The decision

1. The report was privileged

2. Although no application had been made by the claimant, privilege had not been lost.

3. The court had to weigh up on balance the fact that the report had been obtained improperly by the defendant as against the fact that the evidence was already in the open; and it would be artificial if the trial went ahead without the trial judge having that evidence before him-(Jones-v-warwick.).The defendant was understandably anxious to use, in a situation where there was a controversial issue as to the extent of the injuries, a doctor who had seen the claimant at an early stage and before the recovery now put forward by the claimant.

4. The report would be admitted in evidence, but the court wished to express its disapproval of the methods employed by insurers in obtaining the report. The costs order would reflect this and would be claimant’s costs in the case.

For further Information please contact Marie Macfarlane, Senior Associate Solicitor,
tel: +44 (0)1392 278381 or email: mariemacfarlane@veitchpenny.co.uk

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