Watts & Anor v Oakley & Anor

An order requiring disclosure of an expert report should ordinarily be read consistently with litigation privilege. Where the report is to be used at the hearing, it must be filed and served. If the party decides not to rely on it, the report remains privileged unless privilege has been waived.

A solicitor’s participation in seeking permission to obtain an expert report, or in an order providing for its filing and service, does not by itself waive privilege in a report not yet seen or created. A court may clarify an order whose meaning is unclear, and an order should be construed within the court’s jurisdiction.

The claimant was injured in two separate road traffic accidents caused by the admitted negligence of the two defendants. The issue was quantum. During settlement discussions, the claimant obtained permission to seek a neuropsychological report from Dr Leng, and an order required the report to be filed and served by a specified date.

After the claimant decided not to rely on the report, the defendants sought its disclosure. District Judge Hamilton extended time for compliance with the earlier order. HHJ Barham dismissed the claimant’s appeal, holding that the earlier order could not be varied or set aside. The central issues before the Court of Appeal were whether the order required disclosure despite non-reliance, whether privilege had been waived, and whether the order could be clarified or revisited.

1. Appeal allowed. The order requiring the report to be filed and served was subject to an implied limitation that it applied only if the claimant sought to rely on the report. This construction reflected the context of possible settlement and the ordinary operation of privilege.
2. An expert report prepared on the instruction of one party is normally privileged. The Civil Procedure Rules, the pre-action protocols and the authorities cited did not disapply that principle. Disclosure is ordinarily required where the report is to be used at the hearing, unless privilege has been waived.
3. The claimant’s solicitor did not waive privilege. The discussions leading to permission to obtain the report and the order of 18 January 2006 did not amount to waiver. The report had not yet come into existence, the solicitor had not seen it, and no precise basis for waiver had been shown.
4. District Judge Hamilton’s order was wholly dependent on the earlier order. Her essential question was whether the claimant was obliged to file and serve the report. Since the earlier order was subject to the implied limitation, the August order was made on a false premise and was liable to be set aside.
5. The court also considered that the power under Order 3, Rule 1 to vary or revoke an order could, if necessary, be applied to clarify an order whose meaning or implication was unclear. The point was unnecessary to the decision. The restrictions discussed in Collier v Williams [2006] EWCA Civ 20 were doubted in their application to such a case.
6. Order 35, Rule 13 showed the limited consequence of non-disclosure: a party seeking to rely on the report may be prevented from doing so. It did not support a construction exposing a party to being debarred from pursuing the claim for failing to disclose a report on which it did not rely.

Lord Justice Laws agreed, emphasising that the order had to be construed within the district judge’s jurisdiction. Lord Justice Leveson agreed with both judgments. The order was: application granted.

• Court of Appeal (Civil Division) [2006] EWCA Civ 1905: appeal allowed. The January order was construed as conditional on reliance on Dr Leng’s report, and the later enforcement order could not stand on its contrary premise.
• Norwich County Court: HHJ Barham dismissed the claimant’s appeal from District Judge Hamilton’s order extending time to comply with District Judge Sparrow’s order requiring Dr Leng’s report to be filed and served.