Carlson v Townsend

A medical expert selected under the Pre-Action Protocol for Personal Injury Claims becomes mutually acceptable, but is not thereby jointly instructed. The Protocol encourages voluntary disclosure of the resulting report but does not require disclosure in every case or waive litigation privilege.

A party may withhold a privileged report without breaching the Protocol. If that party subsequently instructs an expert outside the agreed selection process without allowing the opponent to object, that instruction breaches the Protocol. The court may respond through directions and sanctions concerning permission, costs and interest, but it cannot compel disclosure by overriding privilege.

The claimant sought damages for a back injury allegedly sustained while caring for the defendant’s disabled adult son. Following the expert-selection procedure in the Pre-Action Protocol for Personal Injury Claims, the claimant instructed a consultant orthopaedic surgeon acceptable to the defendant. He later withheld that expert’s report and disclosed a report from a different, unlisted expert.

District Judge Dickinson ordered disclosure on the basis that the first expert had been jointly instructed. Judge Geddes allowed the claimant’s appeal, holding that the expert had been instructed by the claimant alone and that privilege had not been waived.

The defendant’s second appeal raised two questions: whether withholding the first report breached the Protocol and, if so, whether the court could order its disclosure.

1. Appeal dismissed unanimously. Simon Brown LJ delivered the leading judgment. Brooke LJ agreed completely and gave additional reasons. Mance LJ agreed with both judgments.
2. The Pre-Action Protocol for Personal Injury Claims promotes the voluntary disclosure of medical reports and a cards-on-the-table approach. It does not, however, specifically require disclosure of every report obtained from a mutually acceptable expert. Nor does it alter the substantive law of litigation privilege.
3. An expert selected after the opposing party has been allowed to object is jointly selected in a practical sense, but is not jointly instructed. Paragraph 3.16 provides that the first party instructs the expert. Paragraph 3.20 ordinarily places responsibility for the fees on that party. This differs from a single joint expert directed under rules 35.7 and 35.8 of the Civil Procedure Rules 1998, whom both parties instruct and whose report both may see.
4. Accordingly, the defendant’s failure to object to the nominated expert did not convert him into a single joint expert or waive the claimant’s privilege in advance. Withholding his report was not a failure to comply with the Protocol.
5. The claimant did breach the Protocol by subsequently instructing an unlisted expert without first allowing the defendant an opportunity to object. The court could address that breach through directions and sanctions relating to permission to rely on the new expert, costs and interest. The defendant would also probably be permitted to call an expert of her choice.
6. The available sanctions could not override privilege and compel disclosure of the first report. Brooke LJ emphasised that protocols are guides to good litigation and pre-litigation practice. They are neither enforceable contracts nor instruments drafted with statutory precision. Their purpose does not deprive a claimant of confidential pre-action advice which may be discarded without disclosure.

The appeal was dismissed with costs, subject to a public funding assessment of the respondent’s costs.

1. Court of Appeal: Dismissed the defendant’s second appeal and affirmed Judge Geddes’s decision that the report remained privileged and was not subject to compulsory disclosure.
2. Worcester County Court, Judge Geddes: Allowed the claimant’s appeal. He held that the claimant alone had instructed the expert, privilege had not been waived, and the Protocol did not require disclosure merely because the expert was mutually acceptable.
3. Worcester County Court, District Judge Dickinson: Ordered disclosure, holding that joint selection was indistinguishable from joint instruction and that the expert was jointly instructed.