Previous Expert's Draft Report Did Not Have To Be Disclosed Where Court Had Already Granted Permission To Rely On A Different Expert

Where a claimant had already been granted permission to call an expert, and it later came to light that the claimant had previously instructed a different expert, the High Court refused to impose a condition requiring disclosure of the previous expert's privileged draft report: Bowman v Thomson [2019] EWHC 269 (QB).

The court endorsed the approach taken in a line of previous authorities that expert shopping should generally be prevented by ordering the disclosure of a previous, rejected, expert's report as a condition of permitting a change of expert. However, since an undisclosed expert's report will be subject to litigation privilege, and the court cannot override that privilege, the court cautioned that such a condition should only be imposed if there is a principled way to do so - not merely by attaching a condition to a general case management order or varying an order previously made.

While such a condition was not imposed in this case, it highlights that parties who wish to rely on the evidence of one expert, having previously obtained a report from a different expert, will be at risk of having to disclose the earlier expert's report (whether in draft or final form) as a pre-condition of obtaining permission. Given that risk, parties would be well advised to test a potential expert's views robustly before a decision is taken to instruct the expert.

In this case there is no reference to a distinction between an advisory expert and an expert instructed for the purpose of proceedings. However, that distinction has been made in previous cases, which suggest that the courts will not normally require privilege to be waived where the report is from an advisory expert only (see for example Edwards Tubb v JD Wetherspoon Plc [2011] EWCA Civ 136, considered here).

Background

The issue arose in the context of a clinical negligence claim against the defendant GP. Before sending a letter of claim in October 2015, the claimant obtained an advisory report from a Mr Reynard, a consultant urological surgeon. Mr Reynard produced a further draft report on causation later that year.

The following year the claimant and his lawyers lost confidence in Mr Reynard as an expert and, in February 2017, instructions were sent to another consultant urological surgeon, Mr Shah. By order dated 15 September 2017 the claimant was granted permission to rely on the expert evidence of three medical experts, including Mr Shah.

By co-incidence the defendant's solicitors...