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Courts can order disclosure of pre-issue experts' reports

2 March 2011

Courts can order the disclosure of pre-issue experts’ reports to prevent expert shopping, the Court of Appeal has ruled.

The case involved a chef who was injured at work and an expert’s report which was obtained before proceedings were issued but was not relied on or disclosed by the claimant.

Giving judgment in Edwards-Tubb v JD Wetherspoon PLC [2011] EWCA Civ 136, Lord Justice Hughes said a further experts’ report was obtained from a different expert.

The defendants admitted liability, but disagreed on the extent of the injury and on quantum. They applied for disclosure of the previous expert’s report and said this should be made a condition of the permission the claimant needed under rule 35.4 of the Civil Procedure Rules to rely on a new expert.

Counsel for the claimant argued that the court’s power to order disclosure was limited to changes of expert after the issue of proceedings.

Hughes LJ said “the suggested basis and justification for doing this is the need to prevent expert shopping and, where it has taken place, to put before the court of trial the whole of the available evidence on the question at issue, and not only part”.

He said the imposition of a condition of disclosure was “as justified in pre-issue as in post-issue cases”.

He went on: “An expert who has prepared a report for court is different from another witness. The expert’s prime duty is unequivocally to the court. His report should say exactly the same whoever instructed him.

“Whatever the reason for subsequent disenchantment with expert A may be, once a party has embarked on the pre-action protocol procedure of cooperation in the selection of experts, there seems to me no justification for not disclosing a report obtained from an expert who has been put forward by that party as suitable for the case, has been accepted by the other party as suitable, and has reported.”

Hughes LJ ruled that the court’s power to impose a condition of disclosure of an earlier expert report was available where the change of expert occurred pre-issue as when it occurred post-issue.

He added that while it was important not to expand the scope of litigation or of satellite disputes, courts should “be ready in occasional cases where the circumstances genuinely require it” to require the party to whom the report was disclosed to call the expert as a witness.

Hughes LJ allowed the appeal. Lord Justices Richards and Neuberger agreed.

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Expert witness Wills, Trusts & Probate