Discovery - expert's report - proper construction of 'material instructions' not permitting disclosure of privileged documents
Lucas v Barking, Havering & Redbridge Hospitals NHS Trust: CA (Lord Justice Waller, Lord Justice Mantell and Lord Justice Laws): 23 July 2003
The claimant brought proceedings against the defendant for damages for personal injury.
His particulars of claim were accompanied by experts' reports which made reference to witness statements and to earlier medical reports.
The defendant, relying on Civil Procedure Rule 31.14(2), sought an order for inspection of those documents.
The claimant resisted the application on the grounds that the documents requested were part of the instructions provided to the experts and fell within the exception in rule 35.10(4).
The master construed rule 35.10(4) in the defendant's favour and ordered inspection but gave the claimant permission to appeal.
Joel Donovan (instructed by Gadsby Wicks, Chelmsford) for the claimant; David Westcott QC (instructed by Kennedys) for the defendant.
Held, allowing the appeal, that rule 31.14(2) provided that subject to rule 35.10(4), a party could apply for an order for inspection of any document mentioned in an expert's report; that rule 35.10(4) provided for the expert's report to state all 'material instructions', giving the basis on which the report was written but provided in relation to those instructions that no order to disclose any specific document was to be made unless the instructions were inaccurate or incomplete; that a wide construction was to be applied to 'material instructions' thus requiring the witness statements and earlier medical report as forming part of them; and that accordingly, in the absence of any suggestion of irregularity in the instructions, the rule 35.10(4) restriction applied thus preventing the defendant from obtaining an order for the inspection he sought.
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