Tubb v JD Wetherspoon Plc

When a party seeks permission to rely on a replacement expert instructed for proceedings, the court may condition permission on disclosure of the earlier privileged report. The power applies whether the change occurred before or after proceedings began.

Disclosure should usually be required where the parties have begun the applicable pre-action protocol. Advice obtained privately before that stage ordinarily remains unrestricted, absent an unusual factor. The condition does not override privilege: the party may retain it, but must then forgo reliance on the replacement expert. This approach discourages expert shopping and maximises the expert evidence available to the court.

The claimant brought a personal injury claim after falling at work. Liability was admitted, leaving injury and quantum in issue. After invoking the personal injury pre-action protocol, he obtained an undisclosed report from an agreed orthopaedic surgeon and later relied on a different surgeon.

A Deputy District Judge permitted reliance on the second expert subject to disclosure of the first report. Judge Denyer QC allowed the claimant’s appeal and removed that condition because he considered it an impermissible interference with privilege. The employer appealed. The central issue was whether permission under rule 35.4 of the Civil Procedure Rules could be conditioned on disclosure where the first expert had been instructed before proceedings began.

1. Appeal allowed. The Court of Appeal unanimously restored the Deputy District Judge’s order permitting reliance on the second orthopaedic expert only upon disclosure of the earlier expert’s report.
2. Litigation privilege attached to the earlier report and remained an important substantive right. The court could not criticise the claimant for asserting privilege or draw an adverse inference from doing so. A conditional order did not directly override that privilege. It instead required the claimant to choose between retaining privilege and obtaining the court’s permission to rely on a replacement expert.
3. There was no principled distinction between replacing an expert instructed for proceedings before issue and replacing one instructed after issue. Privilege was the same in each case, as were the dangers of expert shopping. The openness expected under the personal injury pre-action protocol also applied before and after proceedings began.
4. Under rule 35.4 of the Civil Procedure Rules, the court could therefore condition its original permission to rely on the replacement expert upon disclosure of the earlier report. Following the carefully reasoned approach in Hajigeorgiou v Vasiliou [2005] EWCA Civ 236, that condition should usually be imposed where the change occurred after the parties had begun the protocol and engaged with each other in the claim process.
5. A different position ordinarily applied to private advice obtained at the party’s own expense before the protocol began. An expert consulted only to advise privately, and not instructed to produce a report for proceedings, fell outside rule 35.2. Absent an unusual factor, there was insufficient justification for restricting privilege in such advice.
6. Once an earlier report is disclosed, rule 35.11 permits any party to use it at trial. In an occasional case, fairness may require the party wishing to rely on that report to call its author so that the report can be tested. The court should consider such additional case management where genuinely necessary to avoid an unfair tactical advantage.

1. Court of Appeal (Civil Division): Allowed the employer’s appeal and restored the Deputy District Judge’s conditional disclosure order: [2011] EWCA Civ 136.
2. Bristol County Court, His Honour Judge Denyer QC: Allowed the claimant’s appeal and discharged the condition requiring disclosure of the earlier expert report.
3. Bristol County Court, Deputy District Judge: Permitted reliance on the replacement expert subject to disclosure of the earlier expert’s report.