In a clinical negligence case C obtained an expert urology report (“the old report”)t but then lost confidence in the expert. At a subsequent CCMC, C obtained permission for an expert urology report (“the new report), from a different named expert. Some time later, and by complete chance, D found out about the old report and applied for its disclosure as a condition of C being allowed to rely on the new expert report. Both at first instance and on appeal (Dingemans J) the Court found that there was no justification (query no jurisdiction) to retrospectively vary the Order to attach such a condition. The approach in Vasiliou v Hajigeorgiou  EWCA Civ 235 to balancing legal privilege in an expert report with the court’s interest in preventing expert shopping was right but there had to be a “principled” means of identifying a vehicle for ordering disclosure of a prior privileged report before disclosure should be ordered. Attempting to use general case management powers, or making a variation of an order “after the event”, is not permitted.
The position would have been different if D, and thus the Court, had known of the existence of the old report before the Order was made. Then it would be standard practice to add a condition (assuming the old report had been obtained after the protocol had commenced: See Edwards Tubb – v- Wetherspoon (2011) EWCA Civ 136).
Dingemans J commented: “Both parties were clear that they did not want to encourage any routine questioning of parties about whether parties had obtained such prior expert evidence at case management conferences because that would be likely to lead to greater cost, complication and expense for very little gain. I agree with both parties that that would be the likely outcome and that such an outcome would not be desirable.”
However, given this decision there may be added incentive for a Defendant to make this “routine questioning” as otherwise, once an Order is made, they may have lost their chance.