Tubb v JD Wetherspoon Plc

In a personal injuries action, as in any other litigation, the parties need the leave of the court to rely on expert evidence. CPR 35.4 states baldly:

“No party may call an expert or put in evidence an expert’s report without the court’s permission.”

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 terms that before he can rely on B, he must disclose what A has said ? That is the question raised in this appeal.

The claimant suffered a fall at work in October 2005. To anticipate, his defendant employers have accepted liability for the fall. The case is not medically straightforward because whilst he appeared at first to have hurt his knees, or perhaps his knees and his back, his claim is that he is suffering chronic whole-body pain which is having a grave effect upon his life, for which no organic cause can be found, and that it was caused by this accident.

The claim is governed by the pre-action protocol for personal injuries actions: see Civil Procedure at C2-001. This protocol, like others of its kind, was devised by Lord Woolf at the time of his Access to Justice report, for the purpose of providing for good practice, with a view to facilitating settlement if it is possible and expedition and cost-efficiency if it is not. It specifically refers to its aims to improve pre-action contact between parties and to achieve better and earlier exchange of information. At paragraph 2.4 it refers to the ‘cards on the table’ approach and stipulates that whilst some of its detail is designed for fast track cases, the court will expect its spirit to be observed in larger value claims, “eg in respect of letters before action exchanging information and documents, and agreeing experts.”

Whilst the protocol alters directly neither the substantive nor the procedural law, it is made relevant by the Rules to the exercise of the court’s powers. CPR 3.1(4) provides that the court may take into account generally, in giving directions for the conduct of the action, whether a party has or has not complied with the protocol. Specifically, if he has failed to do so without good reason, then 3.1(5) allows the court to order him to pay money into court as a condition of proceeding. In similar manner, CPR 44.3(5)(a) makes compliance with the protocol a relevant consideration when the court is deciding questions of costs. In practice, compliance with the protocol is a matter of importance in the case management of personal injuries actions.

Under the protocol (paragraph 3.15), the parties are expected to give notice to the other side of the names of experts they might instruct, and to afford them the opportunity of objecting to any of those experts. The purpose of that is clearly to achieve where possible the instruction of an expert in whom the other side has confidence. This claimant duly gave such notice, by letter before action in approved protocol form, dated 9 November 2006. His solicitors listed three orthopaedic surgeons whom he might instruct, and invited any objection to any of them within 21 days. One of those was a Mr Jackson; the others were Messrs Hepple and Eldridge. In the event the defendants, through their insurers, did not respond until 16 March 2007, but nothing turns on the delay. They did not, when replying, object to any of the nominated surgeons. They did make a counter offer to pay for a medical report if liability was in due course admitted and if the report were to be obtained through one or other of two agencies. The insurers said this of such a report:

“Although the report will not usually be on a joint basis, we would anticipate that you would disclose it in the majority of cases, to facilitate settlement. In the event that either the report is not disclosed, or we do not accept its conclusions we reserve the right to obtain our own.”

So the counter-offer made clear that separate, rather than joint, instructions were contemplated and that any report would remain privileged unless and until disclosed for the purpose of being relied upon. In the event, the counter offer was not taken up, as clearly it did not have to be. The claimant’s solicitors, as is now known, instructed one of the three surgeons they had nominated, namely Mr Jackson. He examined the claimant on 19 March 2007 and provided a report dated 14 May 2007. That report has never been relied upon or disclosed by the claimant.

Proceedings were issued close to the expiry of the limitation period on 8 October 2008. By then the defendants had admitted liability, leaving the extent of injury and quantum as the live issues. The CPR require the particulars of claim in a personal injury case to attach any medical report relied upon (CPR 16PD.4). These particulars of claim were supported by the report (in fact served shortly beforehand) of a different orthopaedic surgeon, Mr Khan. He had seen the claimant on 14 July 2008 and his report was dated the same day. Mr Khan’s report, in traversing quite a long medical history, revealed that the claimant had seen “an orthopaedic surgeon in Bristol for a medico-legal consultation.” That, plus the fact that Mr Khan was not one of the surgeons originally nominated by the claimant’s solicitors, alerted the defendants to what had occurred.

In due course the defendants issued an application for the disclosure of the earlier report of Mr Jackson. They conceded that they had no absolute right to its disclosure, but presented their application on the basis that such disclosure ought to be made a condition of the permission which the claimant needed under CPR 35.4 to rely on Mr Khan.

There is no doubt about the general power of the court to grant relief by way of case management directions which are subject to conditions. That is an important general power and is specifically provided for in CPR 3.1(3)(a): see, recently, Huscroft v P & O Ferries [2010] EWCA Civ 1483 especially at paragraphs 17 and 18.

Equally, there can be no doubt that the report of Mr Jackson was and is a privileged document. It was obtained by the claimant for the purposes of advice about, and the conduct of, litigation. The privilege belongs to the claimant and not to the doctor. His privilege to keep this document to himself is a substantive right in law. That privilege is a legal concept of considerable importance is demonstrated by a long succession of cases, of which R v Derby Magistrates Court ex p B [1996] AC 487 is perhaps the most striking. As that decision makes clear, there is no question of balancing privilege against other considerations of public interest; the balancing act has been accomplished many years ago and was resolved by preserving the right of privilege. A person in possession of a privileged document cannot be criticised for claiming the privilege and declining to waive it, nor can any adverse inference be drawn against him from his claim: Wentworth v Lloyd (1864) 10 HLC 589 and Sayers v Clarke Walker [2002] EWCA Civ 910. Thus in a case like the present, it is not permissible to infer at trial from the claimant’s stand upon the privileged nature of Mr Jackson’s report that that report was unfavourable to him.

That is not to say that circumstances may not sometimes lead to the practical necessity to waive privilege. A litigant who sues former advisors will normally have to waive privilege in order to get his case off the ground. The same may be true of, for example, an appellant who contends that his criminal conviction was the result of incompetent advocacy in the court of trial. A litigant who wishes to establish the chronology or content of advice received will often have to waive privilege to do so. So may a litigant who wishes to demonstrate that, contrary to appearances, his account of events is not new. It is not uncommon for litigants to be confronted by such choices between waiver and the abandonment of a line of attack or argument.

The question of principle which this case raises is whether the power to impose a condition on the grant of permission to rely on expert B can properly be employed to require the disclosure of the privileged report of expert A, and if so when. If this is proper, what is being done is not directly to override the privilege, because the claimant can elect to stand upon his right to it. Rather, it is presenting the claimant with a price which must be paid for the leave of the court to rely on expert B; that price is waiver of privilege in relation to expert A. It is necessary to recognise that whilst a claimant in a personal injuries action could in theory proceed without medical evidence, and may do so in a simple case of transient injury easily provable, in a case such as the present some medical evidence is a practical necessity. Accordingly the order sought will have the effect of curtailing the operation of privilege by making waiver the price of being able to continue in reliance on expert B. The suggested basis and justification for doing this is the need to prevent expert-shopping and, where it has taken place, to put before the court of trial the whole of the available evidence on the question at issue, and not only part.

Mr Grice, for the claimant, is prepared, with some reluctance, to concede that the authorities show that the power to do this exists, at least where a party is asking the court for permission to change from one court-permitted expert to a substitute in the same discipline. But he contends that it is limited to this situation and thus to a change of expert which takes place after the issue of proceedings. In relation to advice obtained by a party prior to any issue of proceedings, he says that the ordinary law of privilege cannot be disturbed and that party must remain entitled, without criticism, to keep confidential any advice which he has received and does not propose to rely upon. For the defendants, Mr Payne submits that there is no sensible distinction between a change of expert before issue of proceedings and change of expert after it. In both cases, he says, the court has control via CPR 35.4 of whether and on what terms to give leave for the expert of choice to be called, and in both cases it should exercise that power in such a way as to discourage expert shopping and to encourage openness.

The Deputy District Judge granted an order permitting the claimant to rely on Mr Khan but made it conditional on the disclosure of the unused report of Mr Jackson. On appeal, Judge Denyer QC held that this could not be done because it impermissibly overrode privilege, and he discharged the condition. The defendants appeal and contend that the order of the Deputy District Judge ought to be restored.

It is useful to take the principal authorities to which we were referred in chronological order. In Carlson v Townsend [2001] EWCA Civ 511; [2001] 1 WLR 2415 the defendants had voiced no objection to two of the three orthopaedic surgeons nominated by the claimant in his pre-action letter. One of those two (Mr A) was then instructed by the claimant. In due course the claimant did not disclose Mr A’s report but relied on a report from Mr D, who was not one of the three originally nominated. The defendants applied for disclosure of the report of Mr A. They did so relying on the contention that the instruction of Mr A had been a joint instruction. Clearly it had not, and this court so held. There had been agreement by the defendants to Mr A being instructed, but that is not at all the same as his being thereafter jointly instructed; in the pithily expressed words of Simon Brown LJ, as he then was, the expert had been jointly selected but not jointly instructed.

Since that was the argument considered and rejected, the present point did not arise for decision. Some observations made in the judgment might, however, be thought to support the claimant’s present argument:

In Beck v Ministry of Defence [2003] EWCA Civ 1043; [2005] 1 WLR 2206 the question arose in relation to experts instructed for the defendants. The defendants had instructed a psychiatrist (Dr A) who had examined the claimant a little after proceedings had been issued. Some months after this, a conventional order was made by consent providing for the parties to be able to call one psychiatrist each; the doctors were not named. The defendants lost confidence in Dr A and wished to instruct Dr B; in order to do so they needed to have the claimant examined by Dr B. The claimant refused. He contended that the defendants could not justify a second examination without showing that they had good reason for changing experts, and that they could not do so, at least whilst they refused to disclose Dr A’s report. The Circuit Judge, upholding the District Judge, was persuaded that the defendants should be able to instruct Dr B, and thus have the claimant examined by him, and without disclosing Dr A’s report. The order made was therefore to stay the action unless the claimant submitted to that further examination. This court accepted that there was good reason not to order the defendants to disclose Dr A’s report at a time when they might still not succeed in being permitted to rely on Dr B. That was because in identifying their concerns about Dr A at a time when they might end up having to rely on him they would present the claimant with an unfair advantage in the form of material for cross examination of him. But this court held that that danger could readily be avoided by making the order permitting the fresh examination by Dr B conditional on the disclosure of Dr A’s report. Such an order was accordingly made.

It follows that in Beck the defendants did not need the permission of the court to call Dr B, because they already had an order allowing one psychiatrist and it was not limited to a named person. But they did need the permission of the court to have the claimant examined a second time. It was to the latter permission that the condition requiring the disclosure of Dr A’s report was attached.

What are important are the reasons given for the decision. The court started with the proposition that to require a claimant to submit to medical examination is, to an extent, intrusive and must be justified as necessary. Lane v Willis [1972] 1 WLR 326 established that providing it was necessary, the sanction of stay pending submission to examination is correctly available. There was an additional observation in Lane v Willis from Sachs LJ to the effect that it would ordinarily be right to require defendants making such an application to disclose the earlier and discarded report, so that no room should be left for a plaintiff to wonder whether the application were really due to the first report being favourable to him, and Roskill LJ noted with approval that the defendants proposed to disclose it, if given leave to go to their second expert. Plainly the import was that if the defendants were seeking an accommodation from the court to allow a second examination, the plaintiff ought to be equipped as the price of that accommodation with anything in the discarded report which might assist him. That was the background to the following reasoning of this court in Beck:

“26.

I do not say that there could never be a case where it would be appropriate to allow a defendant to instruct a fresh expert without being required at any stage to disclose an earlier expert’s report. For my part, however, I find it difficult to imagine any circumstances in which that would be properly permissible…” (per Simon Brown LJ)

“30.

…expert shopping is to be discouraged, and a check against possible abuse is to require disclosure of the abandoned report as a condition to try again. I agree…that the appeal should be allowed to that limited extent.” (per Ward LJ)

“32.

…..a claimant can reasonably object to having to be examined again if this is, or may be, because the conclusions reached by the first expert have proved more favourable to him that the defendants had anticipated.

33.

I do not consider that the court should order a second examination or stay proceedings pending a second examination by a new expert if this is a possibility. So to order would be to permit the possibility of expert shopping which is undesirable. .…

36.

The answer in this case, and in any case where a situation similar arises is…that the permission to instruct a new expert should be on terms that the report of the previous expert be disclosed. Such a course should both prevent the practice of expert shopping and provide a claimant in the position of Mr Beck with the reassurance that the process of the court is not being abused. In this way justice will be seen to be done.” (all per Lord Phillips MR).

There was no discussion of privilege in any of the judgments, but it is simply impossible that everyone in the case, counsel and judges at three ascending levels of court, forgot the elementary proposition that the report of Dr A was privileged. The reasoning quoted above makes clear the court’s decision that it is nevertheless legitimate, indeed desirable, to attach to the kind of court order there under consideration a condition requiring the disclosure of a discarded expert report, with the twin objects of (a) discouraging expert shopping and (b) making available to the other party, and thus to the court, an expert report on the issue in the case.

To the extent that it was submitted to us that Beck was not a case of one expert being substituted for another because the court order allowed the Ministry to rely on any psychiatrist, I do not agree. The occasion of the issue before the court was precisely that the Ministry wished to change experts. That the accommodation it sought from the court was the enforcement of a second medical examination rather than the substitution, in an order for expert evidence, of one named expert for another makes no difference of substance.

Hajigeorgiou v Vasiliou [2005] EWCA Civ 236 [2005] 1 WLR 2195 (“Vasilou”) was not a personal injuries case but involved the valuation of a restaurant business. The defendants had had a valuation carried out by Mr A before the case management hearing and named him at that hearing as having done so. A consent order was made permitting each party one expert valuer (unnamed). Subsequently the defendants repented of their reliance on Mr A and instead proposed to rely on Mr B. The claimant contended that the defendants should be refused permission to change expert or at least that a condition should be imposed requiring the disclosure of Mr A’s report. Although it was true that the defendants wished Mr B to inspect the premises, nothing turned on that because (a) Mr B could accomplish a valuation without doing so and (b) the claimant did not object to inspection; rather he objected to the change of expert.

This court (Brooke, Dyson and Gage LJJ) held that because the court order simply allowed each party one valuer, and did not name Mr A, the defendants required no permission from the court to change to Mr B. For that reason, the possibility of adding to permission to change to Mr B a condition of disclosure of Mr A’s report did not arise. However, the court went on to consider in detail the wider question of whether such a condition was legitimate, lest it was wrong in its principal decision. Thus the second part of the court’s decision was obiter. It was, however, carefully considered and closely reasoned. It directly addressed the question of privilege, incidentally concluding, as I have done, that it is inconceivable that the court in Beck forgot that the first report was privileged. It did not directly refer to Carlson, but it did cite Jackson v Marley Davenport Ltd [2004] EWCA Civ 1225, which itself specifically refers to Carlson for its statement of the general proposition that the rules cannot have been intended to override privilege. It follows that the importance of privilege was fully considered in Vasilou.

The clear, indeed emphatic, decision was that where the court has power to attach such a condition to an order which is needed by the party changing expert, it should attach it. The court regarded itself as bound by Beck so to hold, but it also endorsed the earlier decision with further careful reasoning. Dyson LJ, as he then was, giving the reserved judgment of the court, summarised the position as follows at paragraph 29:

“The principle established in Beck is important. It is an example of the way in which the court will control the conduct of litigation in general and the giving of expert evidence in particular. Expert shopping is undesirable and, wherever possible, the court will use its powers to prevent it. It needs to be emphasised that, if a party needs the permission of the court to rely on expert witness A in place of expert witness B, the court has the power to give permission on condition that A’s report is disclosed to the other party or parties, and that such condition will usually be imposed. In imposing such a condition, the court is not abrogating or emasculating legal professional privilege; it is merely saying that, if a party seeks the court’s permission to rely on a substitute expert, it will be required to waive privilege in the first expert’s report as a condition of being permitted to do so.”

It seems likely that there is no uniformity of practice at present on this topic. The Deputy District Judge and the Circuit Judge in this case took different views. We were referred to two cases in which the Beck/Vasiliou approach had been adopted in the county court by District Judges and upheld by Circuit Judges on appeal, but those can be no more than single instances. In Carruthers v MP Fireworks Ltd in the Bristol County Court (claim 6BS00303) the claimant wished to rely on the report of pyrotechnics expert B, when, prior to issue, he had consulted pyrotechnics expert A and received his report. Like the claimant in the present case, he did not need to ask the court to substitute one named expert for another in an existing order; he needed simply permission under CPR 35.4 to rely on expert B. The argument addressed to Mr Recorder Moxon Browne was similar to that addressed to us, viz that the Beck/Vasilou approach is justified only where the party seeks the court’s permission to substitute one named expert for another in an existing order, and does not apply where expert A was consulted prior to issue. Both the District Judge and the Recorder rejected that argument and imposed a condition that expert A’s report be disclosed on the CPR 35.4 permission to rely on expert B. It was a contributory feature that the testing by expert A of the firework under consideration might possibly have occasioned some alteration to it and that reinforced the usefulness of disclosure, but this was not the determining factor. At much the same time His Honour Judge Charles Harris QC upheld the imposition of a similar condition in Ramage v BHS Ltd (Slough County Court 4HW02562). There was no existing order for expert evidence which the claimant sought to vary; the condition was attached, as it would be in the present case, to the CPR 35.4 permission to rely on the expert of choice. He gave a valuable and closely reasoned judgment. It is right to say that the case was a strong one because the claimant, through his solicitors, had behaved extremely badly in relation to expert evidence. They had instructed expert A singly despite agreement that he should be jointly instructed, and they had made a number of highly misleading statements about the state of the medical evidence. The judge did not, however, rest his decision on their behaviour but relied upon Beck and Vasiliou for the proposition that since expert shopping is to be discouraged, the court should normally make a conditional order where the power to do so arises.

When giving permission for this second appeal Sedley LJ acutely raised the question whether there exists a difference of principle between privileged pre-issue reports and privileged post-issue reports. The claimant’s case before us depended upon such a distinction, but that was because Mr Grice felt constrained by Beck and Vasilou to accept that the power to impose a condition exists where a party is asking the court to vary an existing order identifying expert A, so that expert B can be substituted. However, even if Mr Grice is right about that, the question still remains: in which circumstances should the power to attach a condition of disclosure be exercised, or should it be the normal order ? It seems to me that in order to dispose of this appeal on a principled basis, and to be of some assistance to courts in the very large numbers of personal injury cases which come before them, we must address the question asked by Sedley LJ.

The first thing to note is that CPR 35 is concerned with experts who are instructed to report “for the purpose of proceedings.” That is made clear by the definition contained in 35.2. As the notes to the CPR (at 35.2.1) make clear, this creates a distinction between an expert instructed to advise a party privately and one who is instructed to produce a report for the purpose of proceedings. Whilst reputable experts will no doubt treat each instruction the same, and whilst it is wise to do so since it is always on the cards that a preliminary report may then be required for use in court subsequently, the formal duty to the court which dominates the position of an expert within CPR 35 arises when he is instructed for the purpose of proceedings.

I am quite unable to see any difference of principle between a change of expert instructed for the purpose of proceedings pre-issue and a change of expert only instructed, for the same purpose, post-issue.

If, then, there is no difference of principle between the change of expert pre-issue and post-issue, the remaining question is whether the imposition of a condition of disclosure of the type under discussion should be regarded as an unusual or exceptional order or should be the normal order. The argument for it not becoming the normal order is, I think, as follows:

It seems to me that Mr Payne is right in his submission that the answer to the question in this case is given as a matter of authority by Vasilou. I do not accept the submission of Mr Grice that the first part of that decision supports the claimant. It is true of course that the first part of the decision was that the defendants did not need any accommodation by way of court order to change to expert B, because there was an existing order allowing reliance on a valuer, and the expert was not named. But that does not help the claimant here. It was not that the court in Vasilou was agreeing that there was no justification for a condition of disclosure in such a situation. The point was that there existed no vehicle for the imposition of the condition, since the defendants needed no order to which it could be attached. The second part of the decision was, certainly, obiter, but it was carefully considered and meant to be of general application. We should follow it unless satisfied that it was wrong. Although the court spoke, in the passage from paragraph 29 cited above at my paragraph 23, of the condition being normally attached where a party “needs the permission of the court to rely on expert witness A in place of expert witness B” and “seeks the court’s permission to rely on a substitute expert”, I think it is impossible for the reasons given in paragraph 26 above to read those as limited to the case of a change after issue. On the contrary, the proposition which precedes those words is clearly meant to state the principle, namely:

“Expert shopping is undesirable and, wherever possible, the court will use its powers to prevent it.”

Authority apart, it seems to me that the imposition of a condition of disclosure is as justified in pre-issue as in post-issue cases. I certainly accept that there may be perfectly good reasons for a party to wish to instruct a second expert. Those reasons may not always be that the report of the first expert is disappointingly favourable to the other side, and even when that is the reason the first expert is not necessarily right. That means that it will often, perhaps normally, be proper to allow a party the option, at his own expense, of seeking a second opinion. It would not usually be right simply to deny him permission to rely on expert B and thus force him to rely on expert A, in whom he has, for whatever reason, lost confidence. But that is quite different from the question whether expert A’s contribution should be denied to the other party by the fact of who instructed him. An expert who has prepared a report for court is different from another witness. The expert’s prime duty is unequivocally to the court. His report should say exactly the same whoever instructed him. Whatever the reason for subsequent disenchantment with expert A may be, once a party has embarked on the pre-action protocol procedure of co-operation in the selection of experts, there seems to me no justification for not disclosing a report obtained from an expert who has been put forward by that party as suitable for the case, has been accepted by the other party as suitable, and has reported. Thus although the instruction of a medical expert is a matter almost of course in most personal injury cases, it is appropriate for the court to exercise the control afforded by CPR 35.4 in order to maximise the information available to the court and to discourage expert shopping. Whilst at the time of Access to Justice this development may not have been foreseen, the ethos of litigation which it established is promoted rather than prevented by the exercise of this power.

For these reasons I would hold that the power to impose a condition of disclosure of an earlier expert report is available where the change of expert occurs pre-issue as it is when it occurs post-issue. It is of course a matter of discretion, but I would hold that it is a power which should usually be exercised where the change comes after the parties have embarked upon the protocol and thus engaged with each other in the process of the claim. Where a party has elected to take advice pre-protocol, at his own expense, I do not think the same justification exists for hedging his privilege, at least in the absence of some unusual factor. As Brooke LJ observed in Carlson (cited at paragraph 15(iv) supra), a party is then free to take such advice on the viability of his claim as he wishes. An expert consulted at that time and not instructed to write a report for the court is in a different position, and outside CPR 35.2.

I would draw attention to the consequences of disclosure of any earlier report. CPR 35.11 provides:

“Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial.”

Without more, that means that the party to whom the earlier expert report is disclosed can simply put it in evidence, and its author is not available to be tested. That will sometimes be perfectly appropriate. The report may contain a matter of fact which is incontestable, or an opinion which it is perfectly possible for the judge to evaluate without seeing the author. But there may be some cases in which it is a disproportionate consequence. The party who is abandoning reliance on the report may have good reason, especially in a serious case, for needing to test or explore the strength of its contents. Whilst it is important not unnecessarily to expand the scope of litigation or of satellite disputes, courts should, I believe, be ready in occasional cases where the circumstances genuinely require it to entertain argument that such testing will be necessary. Where, in such a case, it is necessary to do so to do justice, the court should be ready to consider requiring of the party to whom such a report is disclosed that he call the expert if he wishes to rely on it. 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.

It follows that, with great respect to Judge Denyer QC, I would take the opposite view. I would allow the appeal and restore the order of the Deputy District Judge.

I agree.

I also agree.