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Edwards-Tubb v JD Wetherspoon Plc, Court of Appeal, 25 February 2011

10 March 2011
The issues

Evidence – medical report – party not relying on report – whether further evidence ought to be allowed on terms that first report is disclosed.

The facts

The Claimant suffered an injury at work in October 2005. Liability was admitted. Whilst initially it appeared the injury was to his knees or his knees and his back, he claimed that he began to suffer from chronic whole body pain, for which no organic cause could be found, but that it was caused by the accident. The Claimant’s solicitors, in accordance with the personal injury protocol gave notice in November 2006 that they intended to obtain expert evidence and listed three orthopaedic surgeons, inviting objection to any one of them within 21 days. The three were Messrs Jackson; Hepple and Eldridge. The insurers acting for the Defendant when they replied did not object to any of the nominated surgeons but made a counter offer to pay for a medical report if liability was in due course admitted and if the report was obtained by one or other of two agencies. The insurers wrote:

Although the report will not usually be on a joint basis, we would anticipate that you would disclose it in the majority of cases to facilitate settlement. In the event that either the report is not disclosed, or we do not accept its conclusions we reserve the right to obtain our own.”

The counter offer was not taken up. The Claimant’s solicitors instructed Mr Jackson who provided a report dated 14th May 2007. That report was not relied upon or disclosed by the Claimant.

Proceedings were issued in October 2008. By then only the extent of injury and quantum were live issues. The Particulars of Claim were supported by the report of a Mr Khan, who had seen the Claimant in July 2008. That report referred to the Claimant having seen an orthopaedic surgeon in Bristol for a medico-legal consultation. The Defendants were therefore alerted to what had happened. They issued an Application for the disclosure of the report of Mr Jackson. They argued that such disclosure should be made the condition of the permission which the Claimant needed under CPR 35.4 to rely on Mr Khan. The issue of principle which the case raised was whether the power to impose a condition on the grant of permission to rely on an expert could properly be employed to require the disclosure of a previous expert’s report and, if so, when?

The District Judge granted an Order permitting the Claimant to rely on Mr Khan, but made it conditional on the disclosure of the report of Mr Jackson. On Appeal, the Judge overrode the District Judge’s decision.

The Defendant’s Appealed.

The decision

Was there a difference of principle between privileged pre-issue reports and privileged post-issue reports?

CPR 35 was concerned with experts who were instructed to report “for the purpose of proceedings”. The Court was unable to see any difference of principle between a change of expert instructed for the purpose of proceedings pre-issue and a change of expert only instructed, for the same purpose, post-issue. A party had the same privilege in an expert report which he had obtained, whenever he obtained it. Conversely the damaging features of expert shopping were exactly the same whether it was undertaken before or after issue. Moreover, if the distinction were to be relevant it would create a baseless difference between the case where the Court had made an Order in the form “leave to the Claimant to rely on Mr A and the Defendant on Mr B” and where it had made an Order in the form of “leave to each party to rely on one consultant orthopaedic surgeon”. This would be because in the former case the party changing experts would need to ask the Court to substitute one name for another and in the latter case the party would not. Finally, the whole ethos of personal injury litigation since the introduction of the CPR was to avoid the issue of claims and to expect of litigators a level of openness and communication before and after issue. Once the pre-action protocol letter was written, the parties were expected to engage constructively in the selection and instruction of experts. The expectation was that this would be accomplished largely, if not often wholly, before issue of proceedings.

As to whether the imposition of the condition of disclosure of this type should be regarded as an unusual or exceptional Order, or the normal Order, the Court took the view that the power to impose a condition of disclosure on an earlier expert report was available where the change of expert occurred pre-issue as much as when it occurred post-issue. It was a matter of discretion for the Court, but it was a power which should usually be exercised when the change came after the parties had embarked on the protocol and thus engaged with each other in the process of the claim. Where on the other hand a party had elected to take advice pre-protocol and at his own expense, the same justification did not exist for hedging his privilege, at least in the absence of some unusual factor.

There might be perfectly good reasons why a party did not want to rely on a first expert’s report. It would not usually be right simply to deny a party permission to rely on a second expert and thus force him to rely on the first expert in whom he had for whatever reason lost confidence. But that was a quite different issue from the question of whether the first expert’s report should be denied to the other party. An expert who had prepared a report for the Court was different from another witness. The expert’s prime duty was unequivocally to the Court. Once a party had embarked on the pre-action protocol procedure there seemed no justification for not disclosing a report obtained from an expert who had been put forward by that party as suitable for the case, had been accepted by the other party as suitable, and had reported.

CPR 35.11 provided that where a party had disclosed an expert’s report, any party might use that report as evidence at the Trial. That meant that the party to whom the earlier report had not been previously disclosed could now simply put it in evidence, even though its author was not available to be tested. That might be appropriate in some circumstances. But there might be some cases in which it was a disproportionate consequence. Courts should be ready in occasional cases where the circumstances generally required it, to entertain argument that such testing would be necessary and in such cases to consider requiring of the party to whom such a report was disclosed that that party call the expert if it wished to rely on it.

Appeal allowed.

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