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Fortuitous discovery of earlier expert report is no basis to vary an order retrospectively

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On appeal, the High Court has endorsed the approach that if there is a principled way in which a vehicle can be identified to order disclosure of a prior privileged report, disclosure should be ordered. However, attempting to use general case management powers or varying an order after it has been made is not permitted.

Background

In Bowman v Thomson [2019] EWHC 269 (QB), a clinical negligence case, the claimant obtained an “advisory report” from a consultant urological surgeon, and a further draft report on causation from the same surgeon (“Expert 1”) in late 2015.

Following a conference, the claimant and his legal team are said to have lost confidence in Expert 1 and instructed a new expert (“Expert 2”) in February 2017.  The claimant was granted permission by the court to rely on the evidence of three experts, including Expert 2, and reports from those experts were served in May 2018.

Entirely by chance, the defendant’s legal team approached Expert 1 about whether he could produce a report on behalf of the defendant (there were concerns that the defendant’s expert of like discipline would not be able to do so in time).  Expert 1 reported a conflict, from which the defendant’s legal team correctly inferred that Expert 1 had produced a report on behalf of the claimant.

Application for disclosure

The defendant’s legal team requested disclosure of Expert 1’s report.  This was refused on the basis that the report was privileged.  The defendant’s legal team therefore made a disclosure application.

The judge considered the authorities in this area, which discourage “expert shopping” (the practice of switching experts because a first report does not support the case of the instructing party). 

In Vasiliou v Hajigeorgiou [2005] EWCA Civ 235, Mr Justice Dyson affirmed the principle in Beck v Ministry of Defence [2003] EWCA Civ 1043, noting that expert shopping is:

“ … undesirable and, wherever possible, the court will use its powers to prevent it.  It needs to be emphasised that, if a party needs the permission of the court to rely on expert witness A in place of expert witness B, the court has the power to give permission on condition that A’s report is disclosed” (this includes draft reports).

The application was refused on the basis that the claimant had already been granted permission to rely on the evidence of Expert 2 and was not seeking to change this.  The judge noted the defendant’s submission that the court could re-visit the order and impose a condition that the claimant could only rely on the report of Expert 2 if the report of Expert 1 was disclosed.  However, he concluded there was no basis for this or to impose any new conditions. The defendant appealed.

Appeal

Counsel for the defendant argued that the judge had failed to:

  1. apply the relevant principles that show it is undesirable to permit expert shopping; and
  2. exercise case management powers to make any orders at all (for example, by varying the order originally granted).

Mr Justice Dingemans dismissed the appeal, concluding that the claimant was granted permission to rely on the evidence of Expert 2 without the need for any further order requiring disclosure of the draft report of Expert 1.  As such there was no vehicle for the imposition of such a condition under the existing orders.  Further, the judge rejected the defendant’s submission that it should exercise its discretion under CPR 3.1(7) to vary the original order granting permission when this provision was not referred to before the judge hearing the original application.  Mr Justice Dingemans went on to say that even if he had this power it would not, in his judgment, be appropriate to vary the order:

“ … this is not a secure basis on which to vary the order and require disclosure of Mr Reynard [Expert 1]’s report of 1 November 2015.  It was pure chance that it was discovered to have been produced and therefore this is a very fact specific decision.  The defendant did not seek confirmation before the order of 15 November 2017 was made that the claimant had not obtained prior expert evidence from any other expert.  The defendant could have done so, and it is not clear what the attitude of the claimant would have been, but the time for asking was before the order was made”.

The judge endorsed the approach set out in Vasiliou; namely that if there is a principled way in which a vehicle can be identified to order disclosure of a prior privileged report, disclosure should be ordered, but attempting to use general case management powers or varying an order after it has been made is not permitted.

Comment

This is a fact specific decision.  Also, both parties were clear that routine questioning about whether parties have obtained prior expert evidence at case management conferences should be discouraged because this is likely to lead to “greater cost, complication and expense for very little gain”. However, the effect of this outcome may nonetheless be to encourage parties to adopt routine, and early (i.e. pre-case management conference), questioning of this nature so as not to forfeit their chance to obtain disclosure of prior expert evidence, and satisfy themselves that theirs is not a case involving expert shopping.

Mette Duffy

Mette Duffy Managing Associate

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