Court can require disclosure of privileged report even where no change of expert

The High Court has considered whether a party should be ordered to disclose a privileged second report prepared by its expert, as a condition of being permitted to rely on that expert's evidence: Odedra v Ball [2012] EWHC 1790 (TCC).

The court concluded that, on the facts of this case, it would not be appropriate to order disclosure. This was largely because circumstances indicated that the second report might be based on a misunderstanding of the issues. As a matter of principle, however, it said there could be cases in which a party would have to waive privilege in other reports of its chosen expert as a condition of relying on that expert's evidence. 

Previous cases had established that where a party instructs a new expert (whether or not permission had been granted for the previous expert's report) it may have to disclose the previous report as a condition of obtaining permission to rely on the new expert evidence. This case suggests that the same principle can apply to previous reports from the same expert. There is however no general rule that all reports are disclosable, regardless of privilege; all will depend on the facts and circumstances of the case.

Facts

The underlying claim related to contamination of the claimants' land due to the escape of heating oil from the defendants' oil tank.

The parties had obtained permission to rely on evidence from one expert valuer each. Reports were exchanged. The claimants' expert report did not address the residual value of the land, as the claimants' primary case was that  they lost an actual sale of the property, their buyers having pulled out due to the contamination, so they claimed the full agreed purchase price (£402,500). In the alternative, they claimed the diminution in value of the land.

It was apparent from the inter-solicitor correspondence that the claimants had obtained another report from the same expert which considered the value of the property at various dates, but the claimants did not intend to disclose the report or rely on it at the hearing. The claimants said that the purpose of the report was to assist them in considering the defendants' expert report, and it was privileged.

The defendants sought disclosure of the report, failing which the expert should be debarred from giving evidence. They relied on Edwards-Tubb v JD Wetherspoon PLC [2011] EWCA Civ 136, in which the Court of Appeal held that the court would normally require waiver of privilege in an earlier expert’s report as a condition of granting permission to adduce evidence from a different expert (see post).

Decision

The judge (Coulson J) refused the disclosure application, saying:

• There was no authority dealing with the status of an undisclosed report prepared by an expert at the same time as a report which had been disclosed (Edwards-Tubb related to a report by a previous expert).
• Because of the authorities emphasising the importance of openness under the CPR, including Edwards-Tubb, there may be cases in which an expert would have to disclose both reports as a condition of being permitted to give evidence at all.
• There may be cases where requiring an expert to disclose everything that he produces, regardless of privilege, could give rise to injustice - and, taken to its logical extreme, that might mean that a party would have to disclose all of the expert's draft reports or documents produced to assist counsel with cross-examination. There was no general rule that everything was disclosable, regardless of privilege.
• In the circumstances of this case, it appeared that the experts had become slightly confused as to what they should be doing and so it would be wrong (and potentially unjust) to require disclosure of privileged reports which might be based on a misunderstanding of the issues.
• If the claimants wanted to advance their alternative case, they would have to do so by reference to clear expert evidence as to diminution in value, which would require a further report from their expert in any event.

Comment

This case is of interest in suggesting that the power to require disclosure of a privileged expert report can apply to an undisclosed report by a party's chosen expert, as well as where there is a change of experts. In either case, it seems, the court can require a party to waive privilege as a condition of relying on the expert evidence.

This may be seen as surprising in circumstances where the previous case law referred to by the court is based largely on the court's desire to discourage "expert shopping", i.e. the practice of going from one expert to another until a favourable opinion is found, which obviously doesn't apply where there is only one expert. The decision may also be seen as surprising in that, on its face, the claimants in this case did not require any further permission from the court in order to rely on their expert's evidence; permission had already been obtained. This appears to go against indications in the previous authorities that disclosure of a privileged report can only be required if a party requires a positive order from the court to which that condition can attach.

However, in Axa Seguros S.A. de C.V. v Allianz Insurance plc and others [2011] EWHC 268 (Comm), the High Court said (obiter) that it would have required disclosure of investigation reports produced by an expert who was later retained by a party as their expert for the purposes of the proceedings, even if those reports had been privileged (which, on the facts, they were not). This was on the basis that an expert had an obligation to act independently and to inform the court of any matter known to him which was inconsistent with or cast doubt on his opinion. Therefore documentary evidence of the expert's investigations could not, in the judge’s view, properly be withheld if the expert was to give evidence in the case (see post). This gives some precedent for the idea that an expert's previous reports and investigations can be opened up in the interests of openness and independence.