A district judge was entitled to order that a claimant in a personal injuries claim had to disclose the first instructed expert's medical report before she could rely on a subsequent expert's medical report.
The appellant (R) appealed against an order that her permission to rely on an expert's medical report was conditional upon her disclosing a prior medical report prepared by a previously instructed expert (H) to the respondent (B). B had admitted liability for a tripping accident that had resulted in personal injuries to R. R issued proceedings and contacted B suggesting that it was appropriate for a joint medical expert to be instructed. B stated that it had no objection to the instruction of H. Thereafter R's solicitors wrote to B asking for an agreement for H to be jointly instructed. B did not reply immediately and H was instructed on R's sole behalf without informing B of that fact. B's solicitors subsequently wrote to R stating they had no objection to H being jointly instructed. R's solicitors failed to inform B that H had been instructed to examine R and prepare a report. R's solicitors proceeded to obtain a second medical report by another expert without informing B of the fact. Upon being appraised of the extant situation B applied for H to be treated as a single joint expert or alternatively to permit R to rely on the report of the subsequent expert only on the condition that she disclosed H's report. The judge refused B's primary application but allowed the alternative application. R argued that she obtained H's report on a sole basis, that it was privileged, and if she did not rely on it she could not be made to disclose it as a condition of being allowed to rely on the second expert's report. B argued that there was an explicit agreement between the parties that H be jointly instructed, and that this was a clear case of 'expert-shopping' and that there was no difficulty, still less propriety, about requiring disclosure of the first report as a condition for leave to rely upon the second report.
HELD: In light of the authorities the position was (i) that where a party obtained a medical report for the purposes of litigation it would be privileged; (ii) that party did not need to disclose the report if he did not want to use it; (iii) however, if he had to seek leave of the court to make use of another expert, the court might, as a condition of leave, require him to disclose the earlier report; (iv) that would require the party to decide whether or not he wanted to pay the price for using a second report of waiving privilege in relation to the first; (v) since expert shopping was to be discouraged, the court would normally make a conditional order of the type made in the instant case, Carlson v Townsend (2001) EWCA Civ 511 , (2001) PIQR P346 considered, Beck v Ministry of Defence (2003) EWCA Civ 1043 , (2005) 1 WLR 2206 and Hajigeorgiou v Vasiliou (2005) EWCA Civ 236 , (2005) 1 WLR 2195 applied. In the instant case, it was not in dispute that, firstly, R needed permission to utilise the second expert, having no prior provision for him; and secondly, that she had already got an earlier report from H. In those circumstances it was open to and entirely appropriate for the judge to make the order that she did.
Counsel for the respondent: Brent McDonald
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