Lucas v Barking, Havering & Redbridge Hospitals NHS Trust

This appeal raises a point of some significance in relation to the proper construction and interaction of CPR 31.14(1) and (2) and CPR 35.10(3) and (4).

Mr Lucas is making a claim for personal injury suffered as he alleges as a result of negligence by the defendant. With his particulars of claim he produced as required by the rules two experts’ reports relating to his injuries. Those reports both referred to a witness statement of Mr Lucas provided to the experts. One report also referred to a previous report of an expert. The defendants in reliance on CPR 31.14(2) sought an order for inspection of those documents. The claimant unsurprisingly was reluctant to disclose a witness statement or an expert’s report other than by exchange at the due time. The application was resisted on the basis that the documents requested were part of the instructions provided to the experts, and fell within the exception identified in CPR 31.14.(2) i.e. CPR 35.10(4). The defendants did not suggest before the Master that if the statement and/or the report were instructions within CPR 35.10(4) that there was any basis on which the court should conclude that an order for inspection should be made on the grounds that CPR 35.10(3) had not been complied with.

The defendants were successful in obtaining an order for inspection under CPR 31.14(2) from Master Ungley. We have a note of his decision which is in the following terms:-

“My decision is not affected by the decision of Hart J in Morris v Bank of India 15th January 2001 and reported on rather different facts, because this application is made on almost identical facts to those in Taylor v Bolton Heath Health Authority (Morland J 14^th January 2000 Lexis transcript unreported). Following the decision of Morland J and the overriding objective I shall direct that the report of Mr Durdey and the claimant’s witness statement be disclosed.”

Thus the Master felt bound by the decision of Morland J but he granted permission to appeal. The matter has come directly to us.

In fact Morland J’s decision was concerned with CPR 31.14(4) at a time when it was in slightly different terms. At that stage there was no CPR 31.14(2). 31.14(1) included a sub-paragraph (e). The effect of 31.14(1)(e) added “expert’s report” to the list of documents in which documents might be referred to and in relation to which the rules gave a right of inspection albeit even at that time “subject to rule 35.10(4)”. The distinction between the former provision and the current provision seems to be that formerly prima facie there was a right to inspect the documents referred to in experts’ reports as in the other specified documents, whereas now in relation to experts’ reports an application must be made to obtain inspection. However the word “instructions” must have the same meaning whether the court was considering the old form of provision or the new provision since CPR 35.10.(4) has in no way been amended.

The reasoning of Morland J was to the following effect. He appreciated the obligation of the expert under CPR 35.10(3) to set out “the substance of all material instructions”. He referred further to the relevant practice direction 35PD.2.2(3) requiring the report to “contain a statement setting out the substance of all facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based”. Morland J then said this:-

“In my judgment instructions are what an expert is told to do. What answers he is asked to give to specific questions. This is illustrated, in my judgment, by the first paragraph of Dr Wazou’s report dated 18 August 1997, in which he says:

“I have been instructed to examine Donna Taylor and provide a report on her development from birth, her present neurological and general health state, prognosis for the future and estimation of life expectancy.”

In my judgment, those in very short form are the instructions given by the claimant through her solicitors to Dr Wazou. Dr Wazou then goes on to say:

“Donna was seen in the presence of her parents. I had available to me at the time of preparing this report documentary medical evidence supplied to me by instructing solicitors”,

and then he sets out those reports, including medical reports by Professor Malcolm Levine dated May 1997.

In my judgement, the material upon which an expert is asked to comply with his instruction to answer questions, give a prognosis, etc are not part of the instructions, but the basic material upon which the expert is asked to reach his conclusions in accordance with his instructions, and therefore, in my judgment, the material, the basic material supplied to the expert is not part of the instructions. I bear in mind that the philosophy of the CPR is cards on the table. I have in mind that of course the court and cases should not be encumbered by a prolixity of documents, in particular if they are not necessary. ”

No claim to privilege appears to have been argued and Morland J ordered disclosure.

The above narrow construction preferred by Morland J is to be contrasted with a rather different view of Hart J in the case to which the Master referred. It is necessary to set out some detail of the problem before Hart J in order to place the approach of the judge in context. The case was a banking case and one in which it had been agreed to exchange expert evidence prior to the evidence of witnesses of fact. In the expert’s report of a Mr Wragg reference was made to his understanding of the position, an understanding which he can only have obtained from information supplied either by his solicitors or by his clients. The complaint on the application before Hart J was that the expert had not complied with the provisions of CPR35.10 including the provisions of CPR35.10(3) or the practice direction previously quoted. Mr Wragg’s report did not contain any reference to having been provided with a statement but contained information that he must have obtained either from the statement or from the solicitors. There was further before the judge an affidavit of a Mr Dubash explaining how Mr Wragg had been instructed including a statement that certain factual information had been supplied to Mr Wragg; that statements would have been referred to if they had been exchanged prior to the expert’s report and an assertion that Mr Wragg was asked not to rely on privileged material in preparing his report. The judge then said this:-

“As it appears to me, the expert’s report is, as it stands, defective in that it does not contain “a statement of the substance of all material instructions, whether written or oral, on the basis of which the report was written”. I am quoting from subrule (3) of part 35.10. Taking Mr Dubash’s statement at face value, it would appear that the report would have so complied had it said that it was based on, inter alia, in addition to the matters that are referred to in the report, the matters confirmed to him by Mr Dubash as being factual information on which to base the report, and had then stated what the substance of that factual information was. That would have to have been done either by reference to a document if the confirmation had in fact been contained in a document, or by a summary of the oral communication if it had been by an oral communication.

The fact of the matter is that there is no statement in the expert’s report of the statement required by subrule (3). It appears to me that this is a case where I can be satisfied that the statement of instructions purportedly given in the report is inaccurate or incomplete within subrule (4) of Part 35.10. It is therefore open to the court to order disclosure of the instructions which were given to Mr Wragg for the purposes of his report.

The application is resisted on the part of the defendants insofar as it is an attempt by the claimants to obtain disclosure of draft witness statements which may or may not at some stage or another have been supplied to Mr Wragg. However, they say that insofar as all that is sought is an identification of all those matters in the report which are the subject of oral or written confirmation to Mr Wragg by Penningtons for the purposes of his report, they are perfectly prepared to do the exercise, although they submit that it is an empty ritual. They submit that to order the production of draft witness statements would be wrong because those documents are, in their nature, at this stage privileged documents.

It seems to me that, as between the two views, the question depends on exactly what happened. If Mr Wragg was in fact instructed by providing him with the draft witness statements but was asked to simply expunge references to those witness statements in his draft report but to use the information contained in them in his report, then the draft witness statements so supplied to him for that purpose would have lost their character as being privileged from disclosure because they would form part of the instructions referred to in subrule (3) of part 35.10. If, on the other hand, Mr Wragg when instructed to produce his report was instructed to put out of his mind anything he had learned from seeing earlier confidential material which may have included draft witness statements, but simply to invite Penningtons to supply him with certain assumptions of fact to make for the purposes of his draft report, then only those assumptions of fact would, as it seems to me, be matters which fell within his instructions for the purposes of subrule (3) and (4) of Part 35. But the evidence of Mr Dubash leaves me unclear as to exactly what procedure was followed, and in the light of that lack of clarity and the patent defect in the report as it stands, it seems to me that the claimant is entitled to the order which it seeks in this respect. What the fruit of that order will be will depend very much on exactly how Mr Wragg was instructed for the purposes of this report.”

The basic issue on this appeal is whether the approach of Morland J who preferred a narrow construction of “instructions” is to be preferred to that of Hart J who would have applied a rather wider construction to that word.

One other authority to which we were referred was Bennett v Compass Group UK & Ireland Ltd [2002] EWCA Civ 642. That decision was in fact concerned with the form of order made in the particular case. The order would have allowed the defendant to approach the hospital direct for the purpose of obtaining medical records. But in the reasoning of Clarke LJ with which Chadwick LJ agreed the question of jurisdiction was considered and Clarke LJ said this:-

“The order relates to “[general practitioner’s] and hospital records”. As indicated earlier, Mr McBride referred to entries in both sets of records in his report dated 12 July 2000 annexed to the particulars of claim. The report appears to me to be an expert report within the meaning of CPR 31.14(e), which provides: “A party may inspect a document mentioned in…(e) subject to rule 35.10(4), an expert’s report. (Rule 35.10(4) makes provision in relation to instructions referred to in an expert’s report.)”

Rule 35.10(4) is thus not relevant here. It follows that the defendants were entitled to inspect documents referred to in Mr McBride’s report, namely the claimant’s general practitioner and hospital records.”

It will be seen that the Court of Appeal was concerned with the former provision to which Morland J was directing his attention. The question whether medical records supplied to an expert would form part of the instructions was clearly not fully argued. Nothing in that decision seems to me to bind this court as to the proper approach to the word “instructions”.

The appeal is concerned with the interaction of the provisions of the CPR as already quoted. It raises in my view a quite fundamental question as to what effect the new CPR were intended to have on the issue of privilege. A quotation from each of the experts’ reports in this case will put a little more flesh on the bones so far as this particular case is concerned, and will help to demonstrate the problems that need consideration in relation to the way the above provisions are intended to work.

Dr Paul Durdey’s report of 16^th April 2002 begins as follows:-

“This report into Current Condition & Prognosis was compiled on request of Gadsby Wicks, solicitors, in a letter of 15^th March 2002.

The report is compiled on the basis of the following documentation supplied by the instructing Solicitors:

Dr Fiona Mason’s report dated 8^th May 2002, commences with an introduction dealing first with her qualifications and then with “instructions” and “sources of information” both of which sections I should quote:-

“1.2

Instructions

1.2.1

This report is prepared for the court at the request of Fran Pollard of Gadsby Wicks Solicitors, 91/99 New London Road, Chelmsford, Essex CM2 0PP. My instructions were received in a letter dated 22^nd April 2002. I understand from that letter that Mr Lucas is considering a clinical negligence claim following treatment he received at Oldchurch Hospital. In my letter of instruction his solicitor noted:

“… As a result of the treatment by Oldchurch Hospital, Mr Lucas has suffered considerable psychological distress and in order to value his claim, I need a report from a psychiatrist….

I would be most grateful if, following the appointment with Mr Lucas on 30^th April, you would let me have a report setting out:-

1)

The extent to which you feel that he has suffered a psychiatric and emotional injury as a result of the treatment he has received from Oldchurch Hospital, and

2)

His present psychiatric condition and his prognosis.

3)

The extent to which you feel that psychiatric treatment, if any, may help him in future together with details of the cost…”

“1.3

Sources of Information

1.3.1

In preparing this report I interviewed Mr Lucas for 2 ½ hours on 30^th April 2002 at St Andrew’s Hospital, Northampton.

1.3.2

In addition I examined the following documentation supplied to me:

1 Correspondence from solicitors;

The report then continues “with background information”, “events leading the current claim”, “subsequent aftermath” all asserted to come from “Mr Lucas’ documentation provided and where specified his medical records”, although clearly the information also came from the interview since a number of paragraphs commence with the words “Mr Lucas told me…”.

My initial comments on the above reports would be these. So far as Mr Durdey’s report is concerned, he has not set out the instructions actually obtained from the solicitors but they may not have been material to his report. There is simply a reference to a letter from the solicitors. The report sets out a factual medical history which must have come either from the statement Mr Lucas supplied, or from the solicitor’s letter, or possibly from Mr Lucas in interview or conceivably from all those. These facts clearly were material to his report. Therafter Dr Durdey set out what the present position is by reference to what Mr Lucas had told him in interviews.

Dr Mason does refer to the contents of her instruction letter and presumably to the material part of it. She then summarises a great deal of information she has obtained from a statement and some material which she has obtained from an oral interview. This information she obviously considered material to the report she was being asked to give.

Before turning to the provisions of the CPR with which this appeal is concerned it is worth exploring whether under the law as it stood previously the defendants would have been entitled to disclosure of Mr Lucas’ statement and the report of Dr Durdey.

The position would have been that the statement and the report would prima facie have been privileged. The defendants however would have contended that the contents of the statement and the report were to be “deployed” at the trial in the experts’ report as part of the evidence to be given in the case. There might have been an argument as to whether the production of the evidence to the defendants prior to any deployment at any actual hearing constituted a waiver of privilege or whether the decision of Bracewell J in Clough v Tameside & Glossop Health Authority [1999] 1WLR 1478 accurately represented the obligation to disclose material in an expert’s report. The likelihood is that Bracewell J’s approach would have been followed. It would probably have been held that because the contents of Mr Lucas’ statement were being deployed in the expert evidence, privilege had been waived in those contents and therefore for the statement as a whole. Certainly deployment of the contents of the statement in the expert’s report in court would have produced a waiver of privilege in relation to the whole statement. There is a convenient summary of the principle and the effect of former cases in Disclosure second edition by Matthews and Malek paragraph 10.17 where they say:-

“The general rule is that:

Where a person is deploying in court material which would otherwise be privileged, the opposite party and the court must have the opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood.

The key word here is “deploying”. A mere reference to a privileged document in an affidavit does not of itself amount to a waiver of privilege, and this is so even if the document referred to is being relied on for some purpose, for reliance in itself is said not to be the test. Instead, the test is whether the contents of the document are being relied on, rather than its effect. The problem is acute in cases where the maker of an affidavit or witness statement has to give details of the source of his information and belief, in order to comply with the rules of admissibility of such affidavit or witness statement. Provided that the maker does not quote the contents, or summarise them, but simply refers to the document’s effect, there is apparently no waiver of privilege. This benevolent view has not been extended to the case where the maker refers to the document in order to comply with the party’s need to give full and frank disclosure, e.g. on a without notice (ex parte) application.”

That summary referred to authorities such as Nea Karteria Maritime Co v Atlantic & Great Lakes Steamship Corporation [1991] Com.L.R.138-139 Mustill J and Marubeni Corporation v Ala Fouzof unreported November 6^th 1986 CA. It might also have referred to the case to which we were referred Bourns Inc v Raychem Corp & Anor [1999] 3AllER 154 particularly at 166J where Aldous LJ having disapproved certain statements as to the law of Bracewell J in Clough v Tameside & Glossop Health Authority summarised the position as :-

“The principles of law are clear. Service of a witness statement, whether it be a statement of an expert or a witness of fact, waives privilege in that statement. As stated in the Marubeni Corp case mere reference to a document does not waive privilege of that document; there must at least be reference to the contents and reliance.”

So far as the report of Dr Durdey is concerned, referred to only in Dr Mason’s report, although there are short references to parts of the contents the argument about deployment would have been less clear.

So considerable dispute would have arisen as to whether parts of the statement and the report were being deployed, and as to whether that waived privilege at that stage, or whether only deployment at the trial would have produced the result that the statement had been produced that result.

What then was intended to be the position under the new CPR? Under CPR 31.14(2) the defendants “may apply” subject to CPR 35.10(4) for inspection of documents mentioned in an expert’s report. As already indicated this is to be contrasted with the right to inspect documents in witness statements, witness summaries, affidavits or statements of case. It is also to be contrasted with the former CPR 31.14(1)(e).

Where there is a right to inspect without application, and without the right being subject to CPR 35.10(4), it is not absolutely clear whether a party is still entitled to refuse inspection on the grounds of privilege. There is a suggestion in Documentary Evidence 2^nd edition by Charles Hollander QC and Tom Adam at paragraph 13-14 that CPR 31.14(1) provides an absolute right to inspection. The suggestion is that CPR 31.21 then acts as a sanction disallowing the party who has refused inspection from using the document referred to. I have my doubts as to whether that is right. It seems to me unlikely that the CPR would have intended to abolish privilege at a stroke under CPR 31.14(1) without expressly saying so. In relation to “instructions” in experts’ reports CPR 35.10(4) expressly refers to there being no privilege and if privilege was to be lost I would expect express reference to that result. There is no indication that there was an intention to revoke privilege in all other cases. In addition if privilege has been waived by deployment of the contents of a privileged statement, it is not a satisfactory sanction that a party should simply be precluded from relying on the document of which it has not allowed inspection. If a party has in fact waived privilege, the other party should be entitled to use the documents then disclosable for its own purposes.

It was part of Mr Westcott QC’s submissions that it was open to the claimant in the instant case to raise privilege as an answer to an application under CPR 35.14(2), but his submission was that deployment was such in this case that the claim would obviously have failed. Mr Donovan’s submission was to the contrary. His submission was that unless relief were obtained by virtue of CPR 35.10(4) the claimant would be bound to produce the document for inspection. However the question whether there was an absolute right to inspection under CPR 35.14.(1)(a)-(d) was not fully argued out before us. It is possible that on a proper construction of CPR 31.15 there is a right to refuse inspection on the grounds of privilege even if documents are referred to in a statement of case, a witness statement, a witness summary or an affidavit. CPR 31.15 appears in broad terms to refer to a party’s right to inspect without any right to refuse so to do but in parenthesis at the end of the rule it says:

“(Rules 31.3. and 31.14 deal with the right of party to inspect documents.)”

By bringing in CPR 31.3 at that stage it is possible that the draughtsmen contemplated that a party may be able to refuse disclosure on the grounds that it has “a right” to do so under CPR 31.3(1)(b) allowing for the matter then to be argued out as to whether reference to the document or deployment of its contents has waived privilege.

As I have said the matter has not been fully argued out before us and the question whether CPR 31.14(1)(a)-(d) gives an absolute right to inspection is not in my view critical to the proper approach to CPR 31.14(2). Even if those sub-paragraphs did give an absolute right, the position in relation to experts’ reports is separately dealt with. There is furthermore a good reason why those documents should be separately dealt with.

Under CPR 35.10(3) there is a compulsion on experts to set out their material instructions. It is completely up to a party whether in a statement of case, affidavit or witness statement he refers to a document which might otherwise be privileged. CPR 35.10(3) compels disclosure of what would otherwise be privileged material, and indeed compels that material to be referred to in such a way that under the common law there would be held to be waiver of all other privileged material relevant to showing there was no “cherry picking” at least where that material was deployed at a hearing.

The intention behind CPR 35.10(4) seems to me to be to encourage the setting out fully of “material” instructions and indeed facts. Because a party is compelled so to do, it was thought right that some protection should be given where an expert complies with that requirement. Support for that being the object of CPR 35.10.(4) is gained from a comparison between the Interim Report of Lord Woolf as compared to his Final Report a summary of which appears in the notes at 35.10.(5).

Where does that lead in relation to the construction of the word “instructions”? Mr Westcott submits that a narrow construction should be placed on that word. He says that the CPR cannot have been intended to go backwards. He submits therefore that the correct approach is to construe the word “instructions” narrowly as Morland J did. The effect of his argument would be (1) that some limitation will be placed on the circumstances on which the instruction letter to the solicitors will have to be disclosed. (2) That if a statement is actually referred to as a document an application to inspect will succeed (although on Mr Westcott’s submission a claim for privilege might be made - something which Morland J or those before Morland J did not seem to consider was available). (3) That the effect of deploying the contents of the claimant’s statement would be to waive privilege in the same in any event and that Bracewell J’s approach in Clough should be adopted so that the statement should be ordered to be produced at this stage.

Mr Donovan suggests that CPR 35.10(4) is intended to reach a reasonable compromise so far as material supplied to experts is concerned. The rules require a full setting out of the facts; that would have waived privilege; the loss of privilege is confirmed by 35.10(4) but the court will not make an order for disclosure unless “it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete.” That he submits supports a wide construction of the word “instructions” to include the information being supplied by the claimant and all the material which a solicitor places in front of the expert in order to gain advice.

In my view Mr Donovan’s submissions are to be preferred. It seems to me that CPR 35.10(4) is designed primarily to give protection to a party who would otherwise have waived privilege by being compelled to set out matters in an expert’s report. It is also designed so far as possible to prevent lengthy arguments as to whether there has been a waiver of privilege either prior to the trial or indeed at trial leading to an entitlement to further disclosure.

In this case there is no difficulty in relation to the statement of Mr Lucas. That statement was supplied to the expert as part of the instructions to the expert. Substantial parts had been set out as “material instructions” pursuant to CPR 35.10(3). The very purpose as it seems to me of CPR 35.10.(4) is to prevent compliance with CPR 35.10(3) rendering such a statement disclosable unless there are grounds for believing that the statement of instructions given in the expert’s report is “inaccurate or incomplete”.

So far as Dr Durdey’s previous report is concerned I see no reason why a similar approach should not render that document part of the instructions given to Dr Mason. That report was clearly given to her for a purpose and the purpose must have been to instruct her about what it was that the expert had been saying about Mr Lucas’ condition. It is no abuse of language thus as it seems to me to describe the provision of that report as part of the instructions to Dr Mason.

I agree.

I gratefully adopt the account of the facts and circumstances giving rise to this appeal set out in the judgment of my Lord Waller LJ, which I have had the advantage of reading in draft. I agree that the appeal should be allowed for the reasons given by him. I add a few short observations because of the importance of the point of practice which the case raises, and we are distinctly holding that the approach taken by Morland J in Taylor v Bolton Heath Health Authority (14^th January 2000) should not be followed.

Although (as Waller LJ has pointed out: paragraph 25) the matter has not been argued fully before us, and thus no doubt it would be wrong to express a concluded view, for my part I would have very great difficulty in accepting that CPR 31.14(1)(a)-(d) confer an absolute right to inspect, thus abrogating privilege otherwise inherent in any document there referred to. Such a construction would require very clear words. The sub-paragraphs are not generally concerned with documents which would attract privilege, and so have ample scope to operate without the assumption of any incursion into the law of privilege. It is inconceivable that they abrogate the impact of public interest immunity, which presumably they would if they created absolute rights. And it would be quixotic if documents whose privilege is expressly withdrawn (35.10(4)) were subject only to limited rights of disclosure but those (35.14(1)) whose privilege is only impliedly withdrawn were liable to be inspected without restriction.