piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Getting your hands on an undisclosed expert report and more

When the other side wants to change expert are you entitled to their original expert’s reports and other documentation containing the substance of the expert’s opinion? This was the question considered in the case Allen Tod Architecture v Capita Property and Infrastructure Ltd ([2016] EWHC 2171). Unsurprisingly the claimant in that case resisted disclosure on the grounds that the documents and reports sought were privileged. The claimant had grown exasperated by his expert’s delays and shortcomings and so turned to an alternative expert. At paragraph 32 of his judgment the judge set out the authorities and principles to be applied when considering whether to grant permission to a party to change expert:  (1) The court has a wide and general power to exercise its discretion whether to impose terms when granting permission to a party to adduce expert opinion evidence (2) In exercising that power or discretion, the court may give permission for a party to rely on a second replacement expert, but such power or discretion is usually exercised on condition that the report of the first expert is disclosed (and privilege waived - see Vasiliou v Hajigeorgiou [2005] 1 WLR 2195) (3)  Once the parties have engaged in a relevant pre-action protocol process, and an expert has prepared a report in the context of such process, that expert then owes a duty to the Court irrespective of his instruction by one of the parties, and accordingly there was no justification for not disclosing that report as a condition for changing expert (see  Edwards-Tubb v JD Wetherspoon plc [2011] 1 W.L.R. 1373 – a PI case)  (4) The court's power to exercise its discretion whether to impose terms when giving permission to a party to adduce expert opinion evidence arises irrespective of the occurrence of any ‘expert shopping’. It is a power to be exercised reasonably on a case-by-case basis, in each case having regard to all the circumstances of that particular case.   (5) The court will require strong evidence of ‘expert shopping’ before imposing a term that a party discloses other forms of document than the report of expert A (such as attendance notes and memoranda made by a party's solicitor of his or her discussions with expert A) as a condition of giving permission to rely on expert B (see (BMG (Mansfield) Ltd v Galliford Try Construction Ltd  [2013] EWHC 3183)  In the case of Allen Tod itself the judge found that there was no real reason for making a distinction between the expert’s final report, draft or provisional reports or other documents setting out his opinion: neither would have been discloseable if the expert had remained the claimant’s expert. He ordered disclosure of the original expert’s notes and preliminary report as a condition of permitting the claimant to rely on the new expert and he also ordered disclosure of any document in which the original expert had provided his opinion. To the extent any other material was contained in any such document, it was to be redacted before disclosure.

Are counsel’s doodles privileged?

    Do you doodle in meetings? Should you doodle in meetings?   There is both good news and bad.       The good news is that doodling may be good for you! A study by the University of Plymouth and published in Applied Cognitive Psychology suggests that doodling actually helps improve concentration and memory. Two groups of people were asked to listen to a boring telephone conversation. One group was doodling, the other was not. The doodlers remembered 29 per cent more information than those who had simply sat and listened.   The bad news at least so far as counsel is concerned is that any doodles may now have a wider audience than the doodler may have intended. In Hellard and another v Irwin Mitchell [2012] All ER (D) 71; [2012] EWHC 2656 (Ch) His Honour Judge Purle Q.C. sitting as a judge of the Chancery Division heard an application in a claim for alleged professional negligence against the defendant firm of solicitors.       The essential issue was limitation and, in particular, whether it was reasonable for the solicitors to rely on the advice of counsel and what counsel's advice had been. The solicitors applied for a declaration that the claimant trustee in bankruptcy had impliedly waived the obligations of the bankrupt’s former counsel to uphold legal professional privilege in respect of the subject matter of the claim.       It was common ground that the bringing of the claim had operated as a waiver of privilege with regard to the solicitors’ file including the solicitors’ notes of conferences with counsel and the deliberations of the solicitor including deliberations with counsel. The issue was whether privilege still attached to counsel’s own papers such as working papers and notes of conferences because counsel had not been joined in the claim.       The court held that privilege attached to confidential communications between the solicitors, counsel and their mutual client. Once privilege regarding those communications had been waived, any evidence as to those communications could be adduced - see [9], [12], [15] of the judgment.       Thus having waived privilege in relation to counsel's advice, the claimant could not pick and choose which bits of counsel's advice or deliberations could be withheld from the court. The waiver would therefore extend to all of counsel’s own working papers, deliberations and notes including, presumably, any doodles!       Despite the results of the Plymouth study, it seems that doodling does not always help with concentration and memory. One individual is quoted as saying:   “I always doodle, and I don't pay attention … It kind of hurts my memory”.