Lucas v Barking, Havering & Redbridge Hospitals NHS Trust

Posted on 23/07/2003 · Posted in Expert Witness

Disclosure of expert reports pre-action

The Claimant was Mr Lucas. He claimed to have suffered personal injury as a result of the negligence of the Defendant, Barking, Havering & Redbridge Hospitals NHS Trust.

In accordance with the CPR, the Claimant produced 2 expert reports with his particulars of claim. The reports referred to a witness statement and a third expert report. The Defendant in reliance on CPR 31.14(2) sought an order for inspection of those documents. The Claimant resisted on the grounds that the documents requested were part of the instructions to the experts and that they were an exception to CPR 31.14(2).

The judge felt that it was unlikely that the introduction of CPR 31.14(2) was intended to abolish privilege in the context of expert reports, although did not conclusively rule on the issue.

The judge drew attention to CPR 35.10(4) that deals with instructions to experts. Experts are required to fully set out all material instructions received from their instructing solicitor. On the facts the witness statement and expert report clearly fall within the scope of material instructions. However, the judge felt that it was certainly not necessary that all information provided to an expert be set out, even if the instructors must be prepared to reveal the information if required to do so by the courts. For specific disclosure to be required under CPR 31.14(2), CPR 35/10(4) requires that there are reasonable grounds to believe that the instructions are inaccurate or incomplete and on the facts there were none.

Link: Lucas v Barking, Havering & Redbridge Hospitals NHS Trust [2003] EWCA Civ 110

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