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ACD (Landscape Architects) Limited v Overall

Posted on 15/12/2011 · Posted in Expert Witness

Disclosure of expert reports

The Defendants owned land over which they hoped to obtain planning permission. They retained the Claimant to provide assistance. Applications for planning permission were turned down. The Defendants failed to pay the Claimant, and the Claimant commenced proceedings against the Defendants for the outstanding fees. The Defendants denied that they were liable to pay given that the Claimant had failed to produce full Landscape and Visual Impact Assessment reports and they counter-claimed that if LVIAs had been produced the planning applications / appeals would have been successful.

In preparing for the proceedings the Defendants had an expert draw up a report, but did not disclose it to the Claimant. However, one of the witness statements was very detailed and contained information that could only have come from the expert report. The Claimant consequently sought disclosure of the expert report.

The TCC was satisfied that the Defendants had waived the privilege usually attached to draft expert reports and that it should therefore be disclosed to the Claimant. The judge stated that privilege had been waived because of the following factors: the Defendants  retained an expert (despite claims that an expert would not be necessary in the case), the Defendants used that expert to bolster its defence, the Defendants deployed significant parts of the expert report in its witness statement, the Defendants clearly relied on the content of the report (despite claims that the report merely underpinned their evidence), there was no suggestion that only part of the report should be disclosed if privilege was waived, and express claims that privilege remained are immaterial in light of the report’s contents already being deployed.

Link: ACD (Landscape Architects) Limited v Overall [2011] EWHC 3362 (TCC)

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