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Civil Procedure: Disclosure 1 - 0 Privilege

To do justice and discourage litigants from “expert shopping” the Court of Appeal in the recent case of Ricky Edward Tubbs v JD Weatherspoon PLC [2011] EWCA Civ 136 CA, has again demonstrated a willingness to employ its wide ranging case management powers go behind the shield of a party’s privilege in a document.

Mr Tubbs (“T”) whilst an employee of the Defendant Company (“J”) suffered a fall at work. J admitted liability. Pre-issue T obtained a medical report from Expert A and disclosed the identity of the same in a pre-action letter to J. T subsequently chose not to rely on Expert A’s report. Post-issue T sought leave from the court to rely on the evidence of Expert B pursuant to CPR 35.4. J objected, seeking disclosure of Expert A’s report. J was successful at first instance. This was overturned on appeal by T. J appealed that decision. 

The question before the Court of Appeal was whether the power to impose a condition on the grant of permission to rely on Expert B could properly be employed to require the disclosure of the privileged report of Expert A. 

T conceded that the power existed when a party was seeking permission to substitute one court-permitted expert for another in the same field. Yet, it was contended that the power was limited to a change after the issue of proceedings. Pre-issue the ordinary law of privilege remained sacrosanct. 

J asserted that there was no rational distinction between a change of expert before the issue of proceedings and a change of expert post-issue. In both situations the Court retained control via CPR 35.4 of whether and on what terms to grant permission. In both cases the Court should exercise such power to discourage expert shopping and encourage openness. 

The Court, in allowing the appeal, set out the following principles: 

(i) A party has exactly the same privilege in an expert report which he has obtained whenever he obtains it. 

(ii) Conversely, the damaging features of expert shopping are exactly the same whether undertaken pre or post issue. 

(iii) The whole ethos of personal injury litigation since the introduction of the CPR and its associated protocols was to expect of litigators and parties an equivalent level of openness and communication before and after issue. 

(iv) The power to impose a condition of disclosure of an earlier expert report is available where the change of expert occurs either pre or post-issue. Although a matter of discretion, it is a power that should usually only be exercised where the change comes after the parties have embarked upon the protocol and thus engaged with each other in the process of the claim.

Elizabeth Dwomoh / 1st Mar 2011


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