These provisions were all considered by the Court of Appeal in Lucas v Barking, Havering and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102; The Times, 28 August 2003, a personal injury claim involving an allegation of clinical negligence. With the claim form, the claimant's solicitors served two experts' reports. Both referred to the claimant's witness statement and one referred to an earlier expert's report, which had not yet been disclosed. At an early stage, the defendant's solicitors sought an order for disclosure of the witness statement and the expert's report. The claimant was reluctant to disclose them other than by exchange at the due time. Master Ungley granted the defendant's application, but the claimant appealed successfully to the Court of Appeal.
It held that it was unlikely that the Civil Procedure Rules would have intended to abolish privilege at a stroke under CPR 31.14(1). However this point was not fully argued and the court was careful to stress that it was not expressing a concluded view. With regards instructions to experts, CPR 35.10(4) encourages the setting out fully of "material" instructions and indeed facts. "The obligation
is to disclose the substance of all material instructions". It rejected a narrow interpretation of the word "instructions" in CPR 35.10. Waller LJ said that "material supplied by the instructing party to the expert as the basis on which the expert is being asked to advise should in my view be considered as part of the instructions and thus subject to CPR 35.10(4)." They include "all material which a solicitor places in front of the expert in order to gain advice." So, in Lucas, the witness statement and the earlier report were "instructions".
However "there is no requirement to set out all the information contained in the statement or all the material that has been supplied to an expert. The only obligation on the expert is to set out "material" instructions." Laws LJ said that in the ordinary way the expert is to be trusted to comply with CPR 35.10(3). There must be some concrete fact giving rise to "reasonable grounds" for believing the statement of instructions to be inaccurate or incomplete within the closing words of CPR 35.10(4) before the court will order disclosure of any specific document.
In Lucas there was no basis at that stage for suggesting that the "material instructions" to either expert were in any way inaccurate. This is a pragmatic approach, avoiding satellite litigation and tactical warfare, but providing a remedy where there is obvious sharp or dishonest practice. Solicitors should though be aware that whenever they supply documentation to an expert, there is a risk that the court may at some stage in the future order disclosure of any document sent to the expert.
In Lucas the Court of Appeal stressed the importance of experts setting out details of their material instructions in their reports. Laws LJ referred to "the imperative of transparency". Two cases illustrate what may happen where there is a failure by an expert to set out the substance of material instructions. In Re Bank of Credit and Commerce International SA [2001] All ER (D) 227 (Nov); 15 November 2001, ChD, the statement giving the substance of all material instructions in accordance with CPR 35.10(3) was incomplete or inaccurate. It was not clear whether the expert had been provided with draft witness statements for use in preparing the report. In view of the lack of clarity and the existence of a patent defect, Hart J ordered the bank to serve copies of the documents sent to the expert. In Stevens v Gullis, The Times 6 October 1999, a builder's claim for work done, the defendant instructed a surveyor to prepare an expert's report. It failed to set out the substance of the material instructions. The judge at first instance said that this was particularly important because of the suspicion that the surveyor was getting instructions direct from defendant. In addition the report failed to state that the expert understood his duty to the court and he failed to co-operate with other experts by not drawing up a memorandum of agreement following a meeting. He was debarred from acting as an expert witness. The combination of these failures caused the judge to deduce that the expert "does not quite appreciate what his functions are as an expert witness". The Court of Appeal dismissed the defendant's appeal. Lord Woolf MR, giving judgment, said that there was no doubt whatsoever that the judge was perfectly entitled to make the orders he did. The expert "lacked the basic knowledge of the responsibilities which an expert has when giving evidence". There is no excuse for experts not understanding the requirements of being an expert witness. The Court of Appeal went further than the judge and debarred the surveyor from giving factual evidence as well.
Instruction of a new expert
In general, parties who are dissatisfied with their own experts are free to instruct new experts, provided that they have the means to do so. It is not a matter for the courts. However such an issue may come before the courts if either the court has already given directions referring to a named expert or if consent is needed for the expert to examine another party who has already been examined once. Courts may give permission to instruct a new expert if there is good reason for the replacement and it would be unfair to force a party to continue to instruct an expert in whom confidence has been lost (Stephen Hill Partnership Ltd v Superglazing Ltd [2002] All ER (D) 229 (Oct), Ch D). However permission to adduce evidence from a second expert is likely to refused where the only reason is that the expert has answered a question sent by the other party in a way which is unfavourable to the instructing party (Ahmed v Stanley A Coleman and Hill [2002] EWCA Civ 935; 18 June 2002).
Beck v Ministry of Defence [2003] EWCA Civ 1043; The Times, 21 July 2003 was a claim for clinical negligence in which the claimant alleged that psychiatric treatment had exacerbated an existing condition. The defendant instructed an expert psychiatrist, but lost confidence in him because he had insufficient knowledge of the Ministry of Defence's psychiatric referral system. It wanted to instruct a new expert but the claimant refused to be examined again. The defendant's solicitors applied to the court for permission to instruct a new expert. A district judge and a circuit judge on appeal granted the application and the claim was stayed until the claimant agreed to be examined by the new expert. The main argument in the Court of Appeal was about disclosure of the first report to the claimant. The Court of Appeal accepted the defendant's contention that the judges below had been wrong to order disclosure of the first expert's report for the purpose of making the application. Every detailed point the defendant's advocate might make on the application about the unsatisfactory nature of the report would be directly available against the Ministry of Defence if the application was unsuccessful and it was forced to rely on that evidence at trial.
Ward LJ said "I can see that it would be acutely embarrassing to have to denigrate one's expert's report in order to explain why confidence in him has been lost, only then to find that the application to replace him fails, so forcing the dissatisfied party either to call him when all those criticisms are bound to be thrown back in his face or, if one cannot risk his being thus discredited, to go into battle without any expert opinion to assist the party's case." However if an application to instruct a new expert is to be granted he could see "no reason for continuing to withhold disclosure of the original report which is now to be discarded and every possible reason why such disclosure should be made." Ward LJ stressed that expert shopping is to be discouraged, and a check against possible abuse requires disclosure of the abandoned report as a condition to try again. Accordingly permission to instruct a new expert should be on terms that the report of the previous expert be disclosed.
This raises the question of what happens if the other side wants to use the discarded expert's report. The answer is simple. They can. CPR 35.11 provides that where a party has disclosed an expert's report, any party may use it as evidence at the trial.
This article is an edited version of my contribution to a seminar on expert evidence organised by the Expert Witness Institute and hosted by Denton Wilde Sapte. For more information about the Expert Witness Institute, see www.EWI.org.uk.