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Court of Appeal imposes condition that earlier medical report be disclosed before evidence of new expert could be relied on

Ricky Edwards-Tubb v JD Wetherspoon PLC CA addressed the question of if the claimant has obtained a medical report from expert A, but chooses not to rely on it, and the leave he seeks is to rely on the evidence of expert B in the same field, ought he to be put on the terms that before he can rely on B, he must disclose what A has said?

The Court of Appeal imposed a condition that the earlier medical report be disclosed before the evidence of the new expert could be relied on. Although the expert medical report was undoubtedly a legally privileged document and the claimant’s privilege to keep this document to himself was a substantive right in law, the Court held that it was appropriate to exercise the control afforded to them by CPR 35.4 in order to maximise the information available to the court and to discourage expert shopping.

Perhaps most notably, the Court held that their power to impose a condition of disclosure should be exercised where the change comes after the parties have embarked upon the protocol procedure. Their reasoning was that the ethos of personal injury litigation is to expect an equivalent level of openness and communication before and after issue and the protocols are designed to achieve this by laying down good practice for pre-issue conduct, including the obtaining of evidence.

Once a party has embarked on the pre-action protocol procedure of co-operation in the selection of experts, there seems no justification for not disclosing a report obtained from an expert who has been put forward by that party as suitable for the case. An expert who has prepared a report for the court is different from another witness as the expert’s prime duty is unequivocally to the court, and his report should say the same whoever instructed him. Therefore expert A’s contribution should not be denied to the other party.