Jackson v Marley Davenport - Privilege and the Expert Witness
Jackson v Marley Davenport - Privilege and the Expert Witness
[2004] EWCA Civ 1225
Court of Appeal (Peter Gibson LJ, Tuckey LJ, Longmore LJ)
Facts
On 3rd September 1999, whilst working for the Defendants, Mr Jackson was injured when he fell from a ladder. He suffered a head injury and consequently remembered nothing of the incident. Expert evidence reconstructing the accident was therefore likely to be vital in determining liability.
As well as engineering experts, leave was given to instruct pathologists to comment upon what the nature of the injuries suggested about the mechanics of the accident.
Mr Jackson’s solicitors instructed a Professor Rutty to answer certain questions and prepare a report, apparently for a conference in April 2004. He subsequently provided a report dated 19th June 2004, which referred to two letters of instruction. This report was served on the Defendants. The report was favourable to Mr Jackson. The crux, as the Defendants’ solicitors saw it, was his conclusion, which began “Thus in summary, having now gained additional information in relation to this case, (my opinion is supportive of Mr Jackson)” (emphasis supplied). This suggested that Professor Rutty might have changed his opinion from one he had held previously.
The Defendants therefore applied for disclosure of the original report (which they correctly guessed existed) and the substance of Professor Rutty’s instructions. This was pursuant to CPR 35.10(3), which stipulates:
The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.
Decisions in the County Court
DJ Mort ordered that Mr Jackson disclose Professor Rutty’s first report and that Professor Rutty properly comply with CPR 35.10(3). Mr Jackson successfully appealed to HHJ Hull.
Keene LJ gave permission for an expedited second tier appeal on the basis that there was an important point of principle at stake. This was only in relation to DJ Mort’s first order (that Professor Rutty’s earlier report be disclosed). There was no challenge to HHJ Hull’s overturning DJ Mort’s second order. On this point the circuit judge held that, as there was no reason to suppose that Professor Rutty’s record of his instructions was inaccurate or incomplete, CPR 35.13 did not override privilege and that there should therefore be no order for disclosure of any specific document relating to instruction (Lucas v Barking, Havering and Redbridge Hospital NHS Trust [2004] 1 W.L.R. 220 applied).
The Court of Appeal’s Decision
The Court of Appeal found emphatically for Mr Jackson. It held that “there can be no doubt” that initial drafts of reports are privileged. Thus, “the expert’s report” in CPR 35.10 referred to the expert’s intended evidence not earlier privileged drafts. The Court rejected the Defendants’ submission that CPR 35.13, which stipulates
A party who fails to disclose an expert’s report may not use the report at the trial or call the expert give evidence orally unless the court gives permission.
gave the court power to override privilege. The provision is no more wide-ranging than it first appears. The Court further rejected the submission that the general case management powers provided by the CPR overrode privilege; that was not the purpose of the CPR.
The Court recognised that CPR 35.10(4) specifically exempted the substance of an expert’s instructions identified in CPR 35.10(3) from privilege (c.f. Lucas). However, the inevitable implication from this specific exception was that there was no intention to empower the Court with a general discretion to override privilege. This is also the conclusion of the Court of Appeal in Carlson v Townsend [2001] 1 W.L.R. 2415, which considered whether the Pre-Action Protocol for Personal Injury Claims abrogated privilege (it did not).
Comment
This decision is authoritative that legal professional privilege attaches in the normal way to expert’s preliminary reports and discussions.
A number of practical consequences flowing from this. Firstly, experts should be reminded that earlier discussions and reports remain privileged and that they should therefore refrain from alluding to them, as Professor Rutty did. Secondly, the distinction between a jointly instructed expert (whose materials cannot be privileged – c.f. MP v Mid-Kent Healthcare NHS Trust [2002] 1 W.L.R. 210) and a unilaterally instructed one, even if agreed as per the Protocol, is even more pronounced. Thirdly, an expert should not be required to answer questions concerning previous discussions or documents at trial (or, indeed, on paper before trial). This last is likely to prove quite an important restriction and one that lawyers will have to be alive to. Although the expert’s instinct might often be to give a expansive explanation, the privilege is not his to waive.
Although clear and correct in principle, the decision poses practical dilemmas, as is suggested above. The problem is the uniquely dual nature of the expert’s position in litigation. He is both a key adviser and a key witness.
There has been from their inception a tension between the CPR, with its emphasis on an open “cards-on-the-table” approach, and the older rules of privilege. This case resolves one aspect of the problem in favour of the older rules. The tension, however, remains.