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Expert Evidence and Privilege under CPR

Before the advent of the CPR there was a relatively clear rule that evidence in the form of written statements or experts reports obtained in contemplation of litigation was protected from production because of legal professional privilege. The privilege extended to the letter of instruction.

This was said to be one of the necessary tools in an adversarial system. Furthermore since the privilege was that of the party, rather than the witness and author of the statement, the witness was not in a position where they could waive that privilege. Only the party could do that.

This was equally true of expert evidence. Thus a party was in the position of being able to obtain expert evidence and decide whether to use it or not. If it was decided not to use it then it was not necessary to allow inspection of it under the privilege rule. This assisted a party in obtaining a favourable report, since in theory that party could instruct as many experts as he liked until he obtained a favourable report and neither the court nor the other party would learn about all the other unfavourable reports.

The common law also provides that where material, which is already privileged, is sent to an expert for him to consider, then both the material sent and that expert's opinion attracted legal professional privilege, as long as the material sent to the expert was sent "in privileged circumstances"~. This is in contrast to the normal rule which is that an opinion of an expert is not privileged, nor is any non-privileged material sent to that expert. So that where another party learned of the existence of the opinion and the material they were entitled to adduce it in evidence~.

In the case of Reg v Derby Magistrates Court, ExP B (HL (E)) Lord Taylor stated that legal professional privilege could only be modified or abrogated by StatuteQ. The Civil Procedure Act 1997 which brought about the new Civil Procedure Rules did not specifically say that the law of privilege is abrogated or altered, as was done in the Civil Evidence Act 1968. Recently in General Mediterranean Holdings v PatelZ Toulson J. noted that there had been no change in the law and he held that Part 48.7 where it purported to change the law on privilege by requiring a solicitor to produce privileged documents was Ultra Vires

But now the admission of expert evidence in personal injury cases is governed by the CPR and in particular Part 35 and its Practice Direction.

An "expert witness" as defined by Part 35.2 is an Expert who has "been instructed to give or prepare evidence for the purpose of court proceedings". Such a witness becomes subject to the CPR and apparently a number of consequences follow:

1. He automatically has an "overriding" duty to the court!!; and
2. His report "must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.".2; and
3. "The instructions referred to in paragraph (3) shall not be privileged against disclosure..."
4. In addition it is an express requirement of the rule that the report shall comply with the relevant Practice Direction

Recently a new "Code of Guidance on Expert Evidence" was produced by a working party commissioned by the Head of Civil Justice and it now appears at the end of the Practice Direction of Part 35. "Part I - Experts" deserves consideration:

"3) Any advice given by an expert before court proceedings are started is likely to be confidential to the client and privileged from disclosure to other parties. But where the expert is asked to give or prepare evidence for the purpose of court proceedings, so that Part 35 applies, s/he is required to state the substance of the instructions s/he has received. The court has the power to order the expert to disclose what his or her instructions were.

4) Although the point has yet to be definitively decided, the power to order disclosure may in certain circumstances extend to instructions or advice that were privileged when they were given."

It is worth noting at this juncture that the same new Practice Direction introduced a new oath for the expert to swear. He is now required to promise the court that "the opinions I have expressed represent my true and complete professional opinion."

What is the status of privileged material which is provided to an expert, where an attempt has been made to retain privilege? What now is the position where an expert has provided an advisory report in circumstances where that report would ordinarily attract privilege, but subsequently that expert is asked to provide a report for use under Part 35?

Pre-action Protocol

Certainly a report obtained by a Claimant, not under joint instructions, but under the selection process of the pre-action protocol retains its privileged status: the Court of Appeal so held in Carlson v Townsend-. They reaffirmed that the court had no power to order disclosure of such a report, even though it was compiled "for the purpose of court proceedings", although permission to use it had not yet been given.

Documents and Material provided to a Part 35 Expert Documents mentioned in a report

Part 31.14 has recently been changed. In its new form it provides a means by which a party can seek inspection of a document mentioned in an expert's report, which has not otherwise been disclosed. The only exception expressed in the rule is where the document is a letter of instruction under Part 35.10(4). Although on application by a party the court must clearly retain a discretion not to order inspection (for example, perhaps in the situation where a privileged document has been sent to the expert by mistake, and he has listed it as a document received, but he has not relied upon it at all), in the majority of cases inspection of a document mentioned in a report is likely to be ordered. This is because the court will strive for transparency of expert evidence, and because the overriding objective will require that the case is dealt with justly and with each party on an equal footing. If the expert has "relied" upon it then the court and all parties should be aware of what he has relied upon.

Documents supplied to an Expert but not "Mentioned" by him

The Part 35 Practice Direction at paragraph 2.2 states that an Expert "must" give details of any literature or other material "which the expert has relied upon in making the report". It is already clear that it will not avail such a party to claim that the documents formed part of the expert's "instructions" and are therefore partly protected under Part 35.10(4 ).

The only argument available is whether the document was "relied upon" in making the report. The reference is to the report rather than to the opinion, suggesting that even if the document has not been instrumental in formulating the opinion of the expert, if it has been in any material way "relied upon" in forming the report, then it is required to be mentioned. No doubt it would be argued that usually a document would not be sent to an expert unless it was sufficiently material that he was likely to have placed some reliance on it. Attempts to "edit" a report to exclude reference to a document which that party does not want to allow the other party to inspect, will expose that expert to criticism by the court for failing to comply with his duty (as well as exposing the party to the same criticism, but perhaps greater sanctions). Ultimately a court may simply decline to rely on his opinion at all, on the basis that it is not satisfied that he is an "expert" within the meaning of Part 3516.

Privileged Documents supplied to the expert

As seen above, if a privileged document is sent in privileged circumstances to an expert then the common law provides that privilege is not thereby waived, and the privilege would prevent another party from adducing that opinion or the document supplied to the expert.

Such is not likely to be the position with regard to a Part 35 expert report. If a party applies to the court for permission to use expert opinion in court, then it implicitly agrees to abide by Part 35 and its code. It seems likely that at least once the report has been exchanged there is an effective waiver of privilege. Support for this proposition can be found in two separate sources. First, in Re L (Police Investigation: Privilege) Lord Jauncey suggested that the mother's initiation of the process of getting the permission of the court and then complying with its order of disclosure was a waiver of any right she did have.

Toulson J in the case of General Mediterranean Holdings v Pate~ also suggested that exchange of a report was likely to be held as a waiver of any privilege.

It would appear to be extremely dangerous, therefore to send a privileged document to an expert, even where the party so doing expressly reserves the privilege. No doubt it continues to be privileged, but only up to the point where disclosure of the report takes place. The practice of sending Counsel's Opinion in order for the expert to comment on matters raised in the opinion, is dangerous. The Opinion is unlikely to be held to be part of the "Instructions". It is likely to be held to have been "material" which the expert should have given details of, in accordance with the Practice Direction. As a document it should have been "mentioned" and therefore be subject to inspection.

The Code of Guidance produced by the Academy of Experts expressly states that the expert should not be sent privileged material.

A Part 35 Expert's earlier "Advisory" report

As already discussed if the advisory report was commissioned with a view to, or in the course of, litigation then it is privileged, see Cotton L.J. in Wheeler v Le Marchant.

However, the case of Harmony has already made it clear that since there is no property in a witness and since the court is entitled to hear any admissible evidence, from whatever source, the opinion of an expert commissioned by one party can be adduced by the other party, subject to the qualification in R v Davies (Keith) as discussed above. If this decision is equally applicable in the civil courts, and there is no good reason why it should not be, then it is an important restriction on the right of the other party to call an expert witness to give evidence of his opinion, where his opinion is based upon privileged information, and where that privileged information was given to him in privileged circumstances, and where that expert's client has chosen not to rely on that report (thereby not waiving his privilege).

But where an expert's opinion is admissible it naturally follows that this must cover all of his admissible opinion, as long as it satisfies the relevance test. Any opinion advanced in an earlier "advisory" report, would not be privileged. This is now reinforced by the new statement of truth which an expert is required to sign in relation to reports prepared under Part 35 (which is "and the opinions I have expressed represent my true and complete professional opinion"). The inclusion of the word "complete" surely has the effect that an expert can no longer tailor his opinion by omission. If he is discovered to have done so, after signing the new statement of truth, then he may be in contempt of the court.

An expert might rely upon material in compiling an "advisory" report but which he does not expressly refer to in his later "Part 35 report". What is the position when that Part 35 report is then disclosed with a view to it being relied upon in the proceedings?

Assuming that the two reports deal, broadly, with the same issue, it is unlikely that an expert could comply with the new Practice Direction and genuinely swear the statement of truth in a Part 35 report, where that Part 35 report did not expressly refer to the material which he had relied upon in an earlier "advisory" report. The Practice Direction 35 at paragraph 2.2 requires the expert to "give details of ... material which the expert has relied upon in making the report". In most cases it will be extremely difficult for an expert to convince himself that the later report was not fashioned to some extent by the material used in the advisory report.

An expert who is caught hiding such facts in his Part 35 report is likely to find that his "independence" will be questioned. As an ultimate sanction, it may be that his evidence will be discounted, and perhaps subsequent courts will not give permission for him to be used as an expert. Alternatively, he may be held in contempt of the court.

In all, it seems safer to assume that once an expert is a Part 35 expert and his report is disclosed pursuant to Part 35, then material supplied to that expert which was privileged when sent to him, and any earlier "advisory" privileged report given by him, are likely to lose their privileged status.