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
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 the outset.
This decision will result in satellite litigation. Lord Justice Hughes explained: 'I agree that this may occasionally generate a further need for case management but it seems to me a necessary precaution in some cases if the party to whom the report is disclosed is not to be presented with a potentially unfair tactical advantage.'
From now on, defendants will inevitably seek a directions order from the court requiring claimants to disclose any previous reports not relied on/served with the particulars of claim. On disclosure of any non-favourable report obtained as a result, defendants will then use such reports in evidence (pursuant to CPR 35.11).
Claimants may subsequently seek to justify their actions in changing experts by making an application to cross-examine the discarded expert at court to attempt to discredit him/her. Experts should note this Court of Appeal decision with a degree of apprehension.
Take care
Extra care should now be taken in deciding which expert to instruct once the PAP letter of claim has been sent. A party should be confident that the expert has the necessary kind of expertise and is reliable, that he/she is briefed very clearly and that any report obtained is finalised with both the client and the expert in a form that the instructing party would be happy to disclose if required.
Anything unfavourable in a report should be mitigated as far as possible on the basis that it is now likely to be disclosed to the other party at some stage. If an expert report obtained after sending the PAP letter of claim is not satisfactory, so much so that it is necessary to get a further expert report to rely on, then the discarded report is likely to have to be disclosed at some stage to the other side to use to their advantage.
Unknown impact
The impact of this decision is unlikely to be limited to the personal injury sphere of civil litigation, but it is unclear the degree to which other areas will be affected. This decision certainly impacts on the ability of litigants and their representatives to prepare a case in confidence and as freely as previously before commencing court proceedings.
Claimant representatives should now give serious consideration to investing in a desk-top/draft expert report before sending the PAP letter of claim, particularly in complex and high-value cases, to minimise the practical difficulties which may result from the Court of Appeal's decision. If the expert's response is unexpectedly unhelpful to the claim it should allow for another expert to be instructed without the concern overlater disclosure of this unsatisfactory draft opinion.
However, individual claimants should be mindful that they will need to foot the bill for any such draft opinion. Defendant insurance companies, which will certainly be pleased with the Court of Appeal's decision, commonly obtain desk-top/draft reports already thanks to their vastly greater resources in comparison to individual claimants.
Some will no doubt welcome the Court of Appeal's decision as a curb on the practice of 'expert shopping' in this so-called compensation culture age. Hopefully concerns will be also be mooted about the practical implications of this case and, most importantly, the hedging of the fundamental right to legal professional privilege which has thus far withstood such a degree of court interference for hundreds of years.