Q&As

Where one page of an expert report is disclosed pre-action, is privilege waived and the receiving party entitled to see the complete report?

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Published on LexisPSL on 01/04/2019

The following Dispute Resolution Q&A provides comprehensive and up to date legal information covering:

  • Where one page of an expert report is disclosed pre-action, is privilege waived and the receiving party entitled to see the complete report?

Where one page of an expert report is disclosed pre-action, is privilege waived and the receiving party entitled to see the complete report?

There is no general rule that all expert evidence is disclosable regardless of privilege (see Practice Note: Expert reports, in particular the section ‘Disclosure of reports and privilege’). If this were the case, draft reports and other documents (for example those created to assist counsel for cross-examination) would be disclosable which would be too extreme. In Odedra v Ball, Coulson J held that it was necessary to consider whether the importance of openness under the Civil Procedure Rules trumped privilege or if that would in fact risk injustice.

For instance, in Edwards-Tubb v JD Wetherspoon plc, the Court of Appeal recognised that although a pre-action expert report was privileged and a different expert had been instructed post-issue, the first report should still be disclosed as the parties had agreed on using that first expert under the pre-action procedure of co-operation in the selection of experts. Hughes LJ described it as ‘the price the claimant must pay for leave of the court to rely on expert B is the waiver of privilege in relation to expert A’. Therefore, if a party seeks permission to rely on expert evidence from a different expert during proceedings, there may be a requirement for the party to waive

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