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LTL 6/2/2007, Bristol County Court - Christopher Walker
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A district judge had been entitled to exercise his discretion, applying Hajigeorgiou v Vasiliou (2005) EWCA Civ 236 , (2005) 1 WLR 2195, to grant permission to rely on an expert's report subject to the disclosure of an earlier report by another expert that had been obtained before the action had commenced.
The appellant (C) appealed against a case management decision giving him permission to rely on an expert's report subject to the disclosure to the defendants (M) of an earlier report from a different expert. C had been injured by an exploding firework manufactured and sold by M. Prior to the commencement of proceedings C had instructed a fireworks expert to produce a report and informed M that he was taking this step. C gave an undertaking that any testing on the remains of the firework would be non-destructive. Upon obtaining the report C decided, without explanation, not to rely on it and so he did not disclose the report or produce information about the expert's views or the work carried out by him. After the commencement of proceedings C obtained permission to rely on a report by another expert, but the district judge imposed a condition that the first report be disclosed to M. C submitted that (1) legal privilege attached to the first report and C had the right to shop freely for helpful expert advice without fear of having subsequently to make disclosure of it, which right was curtailed only after the action had started and the court had begun to give directions as to which experts it would permit to be called; (2) the power to give permission conditional on disclosure of an earlier report only applied to cases where a party needed permission to rely on a new expert "in place of" a previous expert.
HELD: (1) The disclosure of an earlier report could always be made a condition of permission to rely on a later report by the same or another expert if fairness and justice required it; but if no such permission was sought, the court did not have any power to override the privilege in the earlier report, Carlson v Townsend (2001) EWCA Civ 511 , (2001) PIQR P346, Beck v Ministry of Defence (2003) EWCA Civ 1043 , (2005) 1 WLR 2206 and Jackson v Marley Davenport Ltd (2004) EWCA Civ 1225 , (2004) 1 WLR 2926 considered and Hajigeorgiou v Vasiliou (2005) EWCA Civ 236 , (2005) 1 WLR 2195 applied. Where an expert had been instructed to perform tests on an exhibit, open justice and fairness would usually demand that the results of those tests should be put before the other experts and the court, particularly where there was some perception that those tests might have caused some alteration to the exhibit. To ensure that justice was achieved this would usually involve the disclosure of the relevant report. In the instant case it was unfair that the nature of the tests and the effect on the remains of the firework were only known by C and at the lowest gave rise to the perception of a potential injustice. (2) There was no relevant distinction between unidentified experts' reports obtained before an action had been started and those obtained with the court's permission after it had started.