In this article, Ann-Marie Christie, General Counsel, explores the lessons for expert witnesses from Brown v Sterne & Others. She examines how relying on confidential material can lead to privilege being waived, what information and instructions experts must disclose, and why advisory reports should be prepared on the basis that they may later be shared with the other side.
We take a fresh look at what is considered privileged in the context of an expert’s report. There is an important difference between a report prepared for the purposes of the litigation and an advisory report provided by an expert to inform the lawyers and their client about possible or actual litigation.
In Brown v. Sterne & Others, a Northern Irish case, the court considered an expert witness’s reliance on a privileged document and how this should be addressed in future cases. The case – here – concerned alleged medical negligence. The Claimant alleged that she had been injured due to negligence whilst undergoing a routine smear test performed by the Defendant, as well as further negligence in the subsequent treatment of the original injury.
The Claimant made an application for access to a statement by the First Defendant that had been sent to the liability expert instructed by the Defendant’s solicitor. The Defendant refused to share this on the grounds of privilege. The Claimant made an application under Order 24, rule 14 of the Rules of Court of Judicature (Northern Ireland) 1980 to compel the Defendant to disclose the statement. Under that rule, the court has the power, at any stage of the proceedings, to order a party to produce any document in its possession, custody or power relating to any matter in question in the cause or matter. Where privilege is claimed, the court may inspect the document for the purpose of deciding whether such an objection is valid.
Legal privilege protects confidential communication between a lawyer and client from disclosure to third parties. It can be waived only in narrow circumstances, including where the client is considered to have waived privilege either expressly or by implication.
What is privilege?
There is litigation privilege which protects the confidential written and oral communications between a client or lawyer, on the one hand, and third parties, on the other. It also protects other documents created by or on behalf of the client or their lawyer once litigation is in contemplation or has commenced, provided that they were created for the dominant purpose of use in the litigation.
There is a legitimate interest on behalf of a party not to disclose certain material to preserve legal professional privilege. There is also a legitimate interest on behalf of a party in knowing what history and documentation the other party’s experts have relied upon and all the sources of such material.
When considering whether privilege has been waived, the authorities state that there must be both reference to the contents of the document at issue and reliance upon it.
The judge stated in the case of Brown that the Defendant’s expert witness had read the statement. It was clearly listed that he had reviewed it whilst undertaking his report, along with seven other documents, including a mixture of medical notes, a chronology, the statement of claim and the statement which was the subject of the application. Therefore, the question for the court was not whether he had read the document, but whether he had relied upon it, in preparing his report. The mere reference to a document does not waive privilege; there must be reliance upon it.
The judge considered that, on the facts before him, privilege had been waived. He concluded that it “cannot be said to be fair or just to conceal relevant material on the basis of privilege when the ability to assert such as right has in my judgement been lost in the circumstances of this case”.
The Defendants could have maintained privilege if they wanted to, but by sending the statement to the expert to be reviewed, referred to and relied upon, they had effectively waived privilege.
Confidentiality and the advisory report
What is the difference between a CPR-compliant report and a report provided on an advisory basis? This question sometimes arises in cases where a significant degree of expertise is needed to identify a potential breach of duty, often in clinical negligence cases, or where the foreseeability of an injury may not be straightforward.
In these situations, the report does not need to be CPR-compliant because is not intended for use in legal proceedings. However, the expert remains under a duty (and therefore a potential liability) to the instructing party to exercise reasonable skill and care when providing advice. In these circumstances, the expert would not expect the advice, the contents of the report or the instructions provided to them to be disclosed to the other side. The position may change, however, if the claim proceeds to court and the expert is subsequently instructed to prepare the CPR-compliant report.
Generally, a pre-proceedings advisory report, although not necessarily the instructions, will not be considered privileged if the same expert is instructed to prepare the CPR-compliant report for the proceedings. This is because the expert has a duty to inform the court of any details relevant to their opinion in the subsequent CPR-compliant report.
If you are an expert who has prepared an advisory report for one party or the other, and then you are considered for use as a single joint expert by both parties, it is likely that the advisory report would have to be disclosed to the other party. In addition, you would need to:
- Disclose the fact that you had previously provided a report to the other party before any question of your appointment as a single joint expert could arise;
- Make it clear to the party that had already instructed you that you would need to be able to disclose the previous report to the other party; and
- Consider whether any information provided to you when preparing the advisory report might create a conflict or embarrass either party, in which case you would have to decline to be put forward as a single joint expert.
The CPR-compliant report
CPR 35.10(3) states that an expert’s report “must state the substance of all material instructions, whether written or oral, on the basis of which the report was written”.
Practice Direction 35, paragraph 3.2(3), states: “The expert’s report must contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based”.
The expert should summarise the instructions to enable the judge to understand which issues the expert is reporting on. Any instruction not to address certain aspects of the case or to disregard certain documents must therefore be included. This also applies to instructions given over the telephone to supplement a letter of instruction.
In the Guidance for the instruction of experts in civil cases – here – paragraph 55 states:
The mandatory statement of the substance of all material instructions should not be incomplete or otherwise tend to mislead. The imperative is transparency. The term “instructions” includes all material that solicitors send to experts. These should be listed, with dates, in the report or an appendix. The omission from the statement of ‘off-the-record’ oral instructions is not permitted. Courts may allow cross-examination about the instructions if there are reasonable grounds to consider that the statement may be inaccurate or incomplete.
Where a party seeks to change experts and needs the court’s permission to do so, as will normally be the case where an expert has been identified as having prepared a report, the court will generally require the first expert’s draft and final reports to be disclosed as a condition of relying upon the second expert’s evidence. In other words, the party is required to waive the privilege which would normally apply to a report prepared for the purpose of litigation.
Learning points
- An advisory report will be privileged from disclosure only if the dominant purpose for obtaining it was litigation. The existence of any other purpose may well undermine this.
- Even if the advisory report is privileged, its contents are likely to be revealed if the same expert is then used to prepare the CPR-compliant report for the litigation.
- An advisory report should therefore be written on the basis that it is quite likely to be disclosed to the other side in the litigation.
- A CPR-compliant report must set out the expert’s instructions clearly, whenever and however they are communicated, and identify the source of all material information relied upon in the report and in reaching an opinion.
- There must be transparency about the information on which an expert relies and the source of that information.
See Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015) co-authored by Giles Eyre, a retired barrister.