If a claimant instructs expert A, but then does not wish to rely upon the content of his report, can he instruct expert B without having to disclose expert A’s report?

The assumption that claimant lawyers have historically made is ‘yes’ – privilege applies.

In Edwards-Tubb v JD Wetherspoon Plc, the claimant’s lawyer was caught out. He nominated three experts – A, B and C – in his letter of claim, and having had no objection from the defendants to any of them, instructed A, but then did not wish to rely upon his evidence. Instead of simply instructing B or C, he instructed D, whose name had not previously been identified.

D’s report was then served, but unfortunately he referred to the claimant having ‘seen an orthopaedic surgeon in Bristol for a medico-legal consultation’. The defendants were thus alerted on two counts to the fact that the claimant had obtained another report.

The issue before the court was whether a condition could be imposed in granting permission to rely on expert D, that the privileged report of expert A had to be disclosed.

Was this ‘a price which must be paid’ for leave of the court to rely upon the second expert?

Hughes LJ giving the lead judgment in a unanimous decision held that such a restriction could be placed on the granting of permission to rely upon a second expert. This would not have the effect of ‘emasculating legal professional privilege’ (see Dyson LJ in Beck v Ministry of Defence [2003] EWCA Civ 1403).

An expert who had prepared a report for the court is different from any other witness in that his primary duty is unequivocally to the court.

Therefore, once a party has embarked on the pre-action protocol process, which encourages cooperation in the selection of experts, the expert comes under the control of the court.

To that extent, his lordship answered the question of Sedley LJ in giving leave to appeal; that, in his opinion, there was no difference of principle between privileged pre-action reports and privileged post-accident reports.

He felt that the whole ethos of personal injury litigation since the introduction of the Civil Procedure Rules and the protocols is to expect of litigators and parties ‘an equivalent level of openness and communication before and after issue’.

If the claimant’s lawyer had not instructed an expert who he had failed to nominate in the letter of claim, the defendants’ suspicion would likely not have been aroused.

The decision of the court is logical: it is consistent with the CPR and the ethos of the pre-action protocols; and it underlines the irritation of the judiciary caused by shopping around for the appropriate expert.

The decision reiterates the view of the appeal court in Beck and confirms that if a claimant is unhappy with a doctor’s report, it is no longer their privilege simply to choose to pay for the instruction of a new expert.

A damning first report will be disclosable come what may.

There is no proper way around this difficulty, and claimants now find themselves effectively limited to the opinion of the first expert instructed.

It behoves the claimant’s lawyer to take more care in the nomination of experts. The lawyer should not leave it to a medical agency to choose experts, but must review the expert’s CV, expertise and medico-legal experience.

The defendants’ solicitors in the case argued that this brings a ‘welcome openness to issues of medical evidence’.

One has to agree, but in reality the practice of obtaining a second opinion is diminishing in any event, and with a more restrictive costs structure in the offing, that trend is likely to continue.

Simon Allen is joint head of the national ­personal injury department at Russell Jones & Walker and managing partner of the Sheffield office