Relief of the lawyers as advice is kept behind closed doors
As long ago as 1553 the courts first recognised the need for expert evidence in cases that concerned what they called 'other sciences', writes Kim Franklin. At the time it was seen as an 'honourable and commendable thing' to 'apply for the aid' of the science concerned. Those Elizabethan judges were not to know that, fourand-a-half centuries later, expert evidence in technically complex cases would become such big business that Lord Woolf, in his 20th-century review of civil procedure, would have cause roundly to criticise the 'large litigation support industry generating a multimillion-pound fee income among professions'. Accountants and, perhaps unfairly, architects were singled out for special mention.
Litigation is now conducted under the Civil Procedure Rules (CPR), which contain various innovations designed to shake off, or at least shake up, what were seen by many as these old-school litigation hangers on. The main theme of expert evidence in the 21st century is the expert's overriding duty to assist the court, irrespective of the interests of the party paying them. This new spirit of openness is supported by Part 35 of the CPR, which governs the contents of the expert's report and the extent to which it should be disclosed to the other side.
Here the CPR rubs right up against the law of litigation privilege, which protects documents generated in contemplation of litigation from disclosure. Thus litigants were able to discuss the merits of their case freely with their lawyers and their experts without the other side getting wind of any of it. Lord Woolf, however, wanted to remove privilege from all communications between clients, experts and advisers once the expert had been instructed.
Now, it may have been that back in the 16th century the court would have 'applied for the aid of another science' and the 'scientist' would have crafted a beautifully succinct report, dealing with all the issues in the case, in a nice easy prose style, so as to leave the judge with a full appreciation of the technical issues and a good idea of the merits of one party's case. If so, most experts have now, somehow, lost the knack. These days lawyers spend much of their time with experts, reviewing, rehashing and re-jigging their reports until they are satisfied that they say all that needs to be said to facilitate a clear judicial understanding of the case. This whole process of mastering the technical evidence would be completely paralysed if these exchanges were not privileged from disclosure. How would they go about it? In code?
The final provisions of the CPR have generated much confusion over the extent to which exchanges between experts and lawyers are protected from disclosure. The recent case of Jackson v Marley Davenport (Judgment 13.9.04) goes some way to clarifying the position. The claimant was seriously injured when he fell off a ladder while working for the defendant construction company erecting a cooling tower at a chemical plant in Germany. The claimant, who had no recollection of the accident, was allowed to call a forensic pathologist to report on the likely causes of his injuries. The expert prepared a draft report for a meeting with the claimant's lawyers and a final report for service.
The defendants correctly deduced that there was an earlier version of the report and asked the court to order its disclosure. The Court of Appeal firmly rejected that application.
The court recognised that it was common for drafts of experts' reports to be circulated among a party's advisers before the final report was exchanged. Such initial drafts were privileged and the CPR did not override that privilege. The fact that the CPR expressly stated that instructions to experts were not privileged demonstrated the limited erosion to the scope of legal professional privilege that was intended by the CPR. Furthermore, the Code of Guidance on Expert Evidence expressly provides for the amendment of experts' reports to ensure accuracy, relevance and clarity.
This, of course, comes as a great relief to experts and lawyers alike. They no longer need worry whether draft experts' reports should be written on rice paper or accompanied by instructions to read, memorise and eat the contents.
Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers. Visit www. crownoffice chambers. com