Jackson v Marley Davenport Ltd

An expert’s earlier report, prepared for legal advice or discussion in litigation, remains protected by litigation privilege. Rule 35.13 of the Civil Procedure Rules does not empower the court to compel its disclosure. It merely prevents reliance on an undisclosed report, or the calling of its author, without permission.

Part 35 creates only a limited waiver of privilege. A disclosed expert report must state the substance of its material instructions, but privilege is not thereby removed from earlier reports or drafts which the party does not intend to rely upon. An order permitting expert evidence does not itself waive privilege. Where the disclosed report is complete on its face, routine disclosure of earlier reports is unnecessary.

The claimant suffered severe head and spinal injuries while working for the defendant construction company in Germany. He could not remember the accident and obtained forensic pathology evidence about its likely mechanism.

The claimant’s expert prepared an initial report for a conference with legal advisers and later produced a report for use at trial. The district judge ordered disclosure of the initial report. His Honour Judge Hull allowed the claimant’s appeal, holding that the court lacked power to compel disclosure of the privileged earlier report.

The defendant appealed to the Court of Appeal. The central issue was whether Part 35 of the Civil Procedure Rules, particularly Rule 35.13, required or authorised disclosure of an earlier expert report when the expert’s later report was to be relied upon at trial.

1. The appeal was dismissed unanimously. Rule 35.13 of the Civil Procedure Rules did not confer power to order disclosure of expert reports prepared before the report intended for use at trial. It provided only that an undisclosed report could not be relied upon at trial, and that its author could not give oral evidence, unless the court granted permission.

2. An expert report prepared so that legal advisers may advise their client, or for discussion at a conference of legal advisers, is protected by litigation privilege. The same protection ordinarily applies to drafts circulated among a party’s advisers before the final report is prepared. The Civil Procedure Rules did not generally abrogate that privilege.

3. Rule 35.10 created a specific and limited qualification. The report constituting the expert’s intended evidence must state the substance of all material written or oral instructions on which it was based, and those instructions are not privileged. That limited provision indicated that privilege was preserved in other respects, including for earlier reports and drafts.

4. The conclusion was supported by Carlson v Townsend [2001] 1 WLR 2415, which held that pre-action protocols did not override privilege in the report of an expert whom a party decided not to call. Although the circumstances differed, the same approach supported preservation of privilege in earlier reports prepared by an expert who would give evidence.

5. The June 2004 report was the only expert opinion on which the claimant intended to rely and was not incomplete on its face. The claimant was therefore not making partial disclosure of his intended evidence. An order permitting expert evidence did not itself waive privilege; waiver occurred only when the party chose to disclose the particular report upon which reliance would be placed.

6. His Honour Judge Hull had correctly set aside the district judge’s disclosure order. The appeal was dismissed with costs, to be assessed in accordance with the appellant’s public funding certificate.

1. Court of Appeal (Civil Division): The defendant’s appeal was dismissed unanimously by the court in [2004] EWCA Civ 1225. The court upheld Judge Hull’s decision setting aside the order for disclosure of the expert’s initial report.

2. Sheffield County Court, His Honour Judge Hull: The claimant’s appeal was allowed. The judge held that the rules did not empower the court to order disclosure of the privileged earlier expert report.

3. Sheffield County Court, District Judge Mort: The claimant was ordered to disclose the expert’s first report and to comply with Rule 35.10(3) of the Civil Procedure Rules.