Carlson iStock_000016048316Small

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

Interested in dispute resolution services?

      Contact

Disclaimer: The above case summary is derived from publicly available information and is not intended to be anything more than a statement of the author’s views on the salient factors of the case. It is not intended and should not be understood to be legal advice of any sort. All views are solely those of the author and no use of the summary should be made without statements being checked against the source of information. Expert Evidence Limited takes no responsibility for the views expressed. The copyright of the summary is owned by Expert Evidence Limited but may be used with written permission which may be forthcoming on application through the contact us page. This news item is not intended to imply or suggest that Expert Evidence Limited was involved in the case, only that it is considered an interesting legal development.