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Expert advice: not privileged, but not available for disclosure

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legal matters

Last week's column looked at some of the repercussions of the Civil Procedure Rules ('the rules') and the rules relating to experts, in particular the ruling in Jackson v Marley Davenport, which rejected demands for the disclosure of draft documentation prepared by a claimant's expert, writes Susan Lindsey. In Lucas v Barking, Havering and Redbridge Hospitals (judgment 23 July 2003) the Court of Appeal had to deal with the rules about an expert's instructions and other aspects of privilege.

A party can avoid disclosing certain documents to the other side by asserting that they are privileged, usually either because the documents have been produced for the purposes of getting legal advice, or because they contain legal advice. The rules say an expert has to state all the material instructions that formed the basis of their report. The expert might have seen things that would usually be privileged, but is obliged to mention them. Another rule says one party can apply to see any document mentioned in an expert report and which has not been disclosed, 'subject to rule 35.10(4)'. Rule 35.10(4) says that, although an expert's instructions are not privileged, the court will not order disclosure of them unless there are reasonable grounds for thinking the expert has not stated all their material instructions.

What does this mean in practice? Consider an expert trying to meet the requirement to state their material instructions, who says they have looked at 'the report of Ms Smith dated 1 January 2004', but that report has not been disclosed to the other side. It is probably a privileged document. Is it a document that has now been mentioned in an expert report so that the other side can apply to see it? Or is it a part of the expert's instructions that has been adequately described, and is therefore protected from disclosure by rule 35.10(4)?

The Court of Appeal in Lucas was faced with two conflicting decisions of the High Court on similar points in other cases. The first was Taylor v Bolton Heath Health Authority (14 January 2000). The judge in that case took a narrow view of what comprised the expert's instructions, deciding that the instructions were what the expert was told to do. The material the expert was asked to use to carry out those instructions was not part of the instructions.

The second case was Morris v Bank of India (15 January 2001). One expert referred in his report to 'his understanding of the position', but did not say whether he had been given a statement or explain how else this information had been conveyed to him. The other side complained the expert had not set out all their material instructions. The judge agreed and ordered disclosure of the instructions pursuant to rule 31.10(4). This suggested a broader interpretation of expert's instructions as including the information the expert was given, as well as what they had been asked to do.

In Lucas, the Court of Appeal preferred the wide construction of 'instructions'. In so doing, the court explained that the intention behind rule 35.10(4) was to encourage experts to set out fully material instructions and facts. Where an expert complies with that obligation, the pre-CPR position was that privilege could be waived by referring to otherwise privileged documents. Hence rule 35.10(4) says expert instructions are not privileged, but nevertheless provides protection from having to produce them.

In Lucas, one expert referred to the report of another in their description of their instructions.

The Court of Appeal said the previous report was clearly given to the expert for the purpose of instructing them on what the other expert had said about Mr Lucas. As such, the provision of that report to the expert was part of the instructions.

So material given by instructing parties to their experts as the basis on which the expert is being asked to advise is considered to be part of their instructions, and therefore protected by 35.10(4).

Unless or until there is some concrete fact giving rise to 'reasonable grounds' to suggest that the duty to describe all material instructions properly has not been complied with, instructions, and documents given to the expert and referred to by them as part of their instructions, will be safe from disclosure.

Susan Lindsey is a barrister at Crown Office Chambers. Visit www. crownofficechambers. com

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