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Carlson v Townsend

Posted on 10/04/2001 · Posted in Expert Witness

Disclosure of expert reports pre-action

The Claimant was Mr Carlson who suffered a back injury whilst employed by the Defendant as a carer for her disabled adult son.

In advance of proceedings the Claimant sought to instruct an expert and sent a list of possible experts to the Defendant. The Defendant objected to one of the proposed experts and the Claimant instructed another from the list. The Defendant believed that the expert had been appointed on a joint instruction basis and it expected the expert’s report to be disclosed. However, the Claimant did not disclose the expert’s report. Instead, he disclosed a different report from an expert who had not been on the list.

The judge separated the instruction of an expert from the selection of an expert. He stated that the pre-action protocol did suggest that experts objectionable to one party be eliminated at the start in the interest of removing the obvious barrier to the prospect of agreeing the expert evidence. However, ensuring the selection of a mutually acceptable expert did not equate to joint instruction.

Furthermore, the judge believed that allowing parties to object to experts suggested by the other side did not mean that the instructing party was waiving the privilege attached to the report ultimately obtained. He accepted that the protocol did promote voluntary disclosure of expert reports, but did not accept that the protocol required disclosure in all cases given that this would defeat the law of privilege.

On the facts it made no difference to the discloseability of the first report that the Claimant later disclosed a report from a non-nominated and un-agreed expert. The Claimant did breach the protocol, however, in instructing an expert it had given the Defendant no opportunity to object to.

Link: Carlson v Townsend [2001] EWCA Civ 511

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