Lucas v Barking, Havering & Redbridge Hospitals NHS Trust

Material supplied by an instructing party as the basis on which an expert is asked to advise forms part of the expert’s “instructions” for the purposes of rules 35.10(3) and (4) of the Civil Procedure Rules 1998. This includes witness statements and earlier expert reports.

An expert must state the substance of all material instructions, but need not reproduce every item of information supplied. Specific documents constituting those instructions are not ordinarily open to inspection. Disclosure or questioning requires concrete facts providing reasonable grounds to consider the expert’s statement of instructions inaccurate or incomplete. The restriction balances transparency about the factual basis of expert evidence against the loss of legal professional privilege caused by compulsory disclosure.

The claimant brought a clinical negligence claim for personal injury and served two expert reports with his particulars of claim. The reports referred to his witness statement, and one also referred to an earlier expert report. The defendant obtained an order from Master Ungley requiring inspection of those documents under rule 31.14(2) of the Civil Procedure Rules 1998.

The Master followed Taylor v Bolton Heath Health Authority, in which “instructions” had been confined to what an expert was told to do, rather than the material supplied as the basis for the expert’s opinion. The claimant appealed directly to the Court of Appeal. The central issue was whether “instructions” in rules 35.10(3) and (4) bore that narrow meaning or included factual and documentary material supplied to the expert.

1. Appeal allowed unanimously. The claimant’s witness statement and earlier expert report formed part of the instructions given to the experts. The order for their inspection was refused.
2. Waller LJ, with whom Mantell LJ and Laws LJ agreed, held that “instructions” in rules 35.10(3) and (4) of the Civil Procedure Rules 1998 must receive a wide construction. Material supplied by an instructing party as the basis on which an expert is asked to advise is part of the expert’s instructions. A witness statement supplied as factual material and an earlier expert report supplied to inform another expert about the claimant’s condition therefore fell within rule 35.10(4).
3. Rule 35.10(3) compels an expert to state the substance of all material instructions. That compulsory transparency could otherwise waive privilege in related material. Rule 35.10(4) consequently protects specific documents and restricts questioning unless reasonable grounds exist for considering the statement of instructions inaccurate or incomplete. This construction also avoids collateral disputes about waiver.
4. The expert need not set out every item of information contained in a statement or every part of the material supplied. The obligation concerns the substance of material instructions. No existing fact suggested that either expert’s account was inaccurate or incomplete. Possible inconsistencies arising after service of witness statements or further reports were speculative and could not justify immediate disclosure.
5. The narrow approach in Taylor v Bolton Heath Health Authority was disapproved and was no longer to be treated as authoritative. Laws LJ added that transparency requires the factual basis of an expert’s report to be patent, while the expert is ordinarily trusted to comply with rule 35.10(3). A party seeking the underlying documents must identify a concrete fact giving rise to the required reasonable grounds.
6. The court expressed no concluded view on whether rule 31.14(1)(a)–(d) creates an absolute right of inspection overriding privilege. Waller LJ doubted that privilege had been abolished without express language, and Laws LJ considered that such a construction would require very clear words.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The order for inspection of the claimant’s witness statement and earlier expert report was refused: [2003] EWCA Civ 1102.
2. Queen’s Bench Division, Master Ungley: The Master followed Taylor v Bolton Heath Health Authority and ordered disclosure of the documents, while granting permission to appeal directly to the Court of Appeal.