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Getting a grip

The Court of Appeal decision on disclosure has certainly changed the game. But should it be viewed as a hedging of legal professional privilege or a welcome curb on expert shopping? Penelope Heighton reports

7 March 2011

The Court of Appeal has held that the power of the court to impose a condition of disclosure of an earlier expert report is a discretion now also available where the change of expert occurs pre-issue and which should usually be exercised by the court where the change occurs after the parties have embarked upon the pre-action protocol.

The effect of this decision is that once a PAP letter of claim has been sent out and a party subsequently obtains a report from a different expert, albeit pre-issue, then the court can exercise its discretion to order the disclosure of the initial discarded report despite it being privileged.

Clearly the main theme behind the Court of Appeal’s decision is to reduce ‘expert shopping’ and for parties to ‘lay their cards on the table’ from an early stage, which is an entirely worthy goal. As a result, claimant representatives in personal injury matters will now need to consider even more carefully their potential ‘cards’ from th...

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