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Ricky Edwards Tubb v J D Weatherspoon plc

Posted on 25/02/2011 · Posted in Expert Witness

Disclosure of expert reports pre-action

The Claimant was Mr Tubb who suffered a fall at work. The Defendant, his employer, had accepted liability for the fall but the extent of the injury was in dispute.

The Claimant sent the Defendant a list of experts and the Defendant made no objections. The Claimant instructed one of the listed experts, but did not disclose that report. Instead the Claimant attached a different report to the particulars of claim.

The Defendant sought disclosure of the earlier report. They felt that waiver of privilege on the first should be a condition of relying on the second report and that this was necessary to stop expert-shopping.

The judge held that courts can grant relief, but also held that the earlier report was a privileged document and it was not permissible to infer from the Claimant’s claim of privilege that the report was unfavourable.

The judge stated that the stance should be the same whether the case was pre- or post-action. He accepted that there are perfectly good reasons for instructing a second expert, that a party should be allowed to seek a second opinion, and that advice from experts should be privileged. However, in his view experts were different to other witnesses given their duty to the court. This led to the conclusion that where parties have embarked upon the pre-action protocol procedure of co-operation in the selection of experts, there would be no justification for not disclosing the report obtained from the agreed expert.

Link: Ricky Edwards Tubb v J D Weatherspoon plc [2011] EWCA Civ 136

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