In this Northern Irish case, the issue of an expert witness relying on a privileged document is explored, as well as considering how this should be addressed in future cases.
Background
This case is one of alleged medical negligence. Ms. Deborah Brown (the ‘Claimant‘) alleges that she was injured due to negligence whilst undergoing a routine smear test, performed by Dr Sterne (the ‘Defendant‘). She also alleges further negligence in the subsequent treatment of the original injury.
Requesting access
In this hearing, the Claimant was seeking access to a statement made by the Defendant dated 13 September 2021 (the ‘Statement‘) which had been referred to by the Defendant’s expert witness. Subsequently, the Defendant had refused to share this document on the grounds that it was privileged.
Legal privilege protects confidential communications between a lawyer and client from disclosure to third parties and can only be waived in narrow circumstances, unless it is considered that the client has waived privilege either expressly or by implication.
Wisdom is the right use of knowledge. To know is not to be wise. But to know how to use knowledge is to have wisdom.”
Charles Spurgeon
The Court Rules
Under Order 24 rule 14 of the Rules of Court of Judicature (Northern Ireland) 1980 (the ‘Rules‘), the court has power to order a party, at any stage of proceedings, to produce to the court any document in its possession, custody or power relating to any matter in question. This is tempered by the fact that no such order shall be made unless the court considers that it is necessary to deal with the matter fairly or for the purposes of saving costs. Where privilege is claimed, the court will inspect the document for the purpose of deciding whether such an objection is valid.
A Question of Privilege
It was clear that the Defendant’s expert witness, Dr Alan Middleton had read the Statement. It was clearly listed that he had reviewed it whilst undertaking his report, along with seven other documents, including a mixture of medical notes, a chronology, the statement of claim and the relevant Statement. Therefore, the question for the court was not whether he had read the document, but whether he had relied on it, in the preparation of his report. This was confirmed in the case of Bourns Inc v Raychem Corp & Anor (1999) 3 All ER 15, which stated that mere reference to a document does not waive privilege in that document, but that there must have been reliance upon it.
Forming a View
At various points in his report, Dr Middleton made comments that he had “reviewed” and “considered” all of the documentation he had been supplied with, and cross referenced those in the production of his report. He also added that this was all the information that he had used in the formation of his opinion.
Transparency increases credibility and accountability.”
Park Won-soon
In the case of Orr v Crowe Building Contractors [2009] NIQB 17, it was held that a medical report should not be disclosed due to privilege. However, although it is a medical negligence case, the facts are not analogous to the present case, as it primarily dealt with questions of quantum and, most importantly, the judge concluded that the expert there had not referred to or relied on the document in question.
The judge concluded that in the context of a liability report, such as this, where the expert is being asked to comment on whether the doctor in question has been negligent, then phrases such as “having reviewed all the documentation” or “having considered all the papers” should be taken to mean exactly that. This means that an expert will be considered to have relied on all the material provided, including statements given by the person at the centre of the claim.
Outcome
On the present facts, it was considered that privilege had been waived. The judge concluded that it “cannot be said to be fair or just to conceal relevant material on the basis of privilege when the ability to assert such a right has in my judgment been lost in the circumstances of this case.”
However, it was noted that legal professional privilege is a “fundamental tenet” and that nothing in this ruling changes that. The Defendant could have maintained privilege if they had wanted to, but by sending the Statement to Dr Middleton to be reviewed, referred to and relied on, they had effectively waived that privilege.
It was emphasised that the principles of fairness and ensuring all parties are on an equal footing must prevail here and the document must be shared. The judge concluded that the progress of this matter going forward would be severely undermined” by one party’s expert having access to material which their counterpart had not seen, due to privilege. It was further noted that this debate had delayed the matter further, and that by considering that privilege had been waived, it would help to move the matter forward towards a resolution.
Going Forward
There has been a greater emphasis recently in medical negligence cases for more transparency and fairness for all parties. Indeed, since the Orr case, there have been two further updates of the Clinical Negligence guidelines reflecting this and the guidelines of the Clinical Negligence Protocol of 1 October 2021 highlight the importance of a “cards on the table” approach to clinical negligence litigation, which again would require that all parties have access to all the documents where possible.
A lack of transparency results in distrust and a deep sense of insecurity.”
Dalai Lama
The judge concluded that it cannot be “fair or just” that one party, here notably a healthcare provider, holds a document which they are happy to share with their expert when giving his opinion on liability, but not with the other party. The Claimant’s expert should be afforded the same opportunity to review the material and form their opinion.
Following this decision, expert witnesses will have to be aware that any documents they are asked to review could be regarded as no longer privileged, and it would be wise to make sure all parties are aware of this. Once a document has been seen, it is very difficult, if not impossible, for the expert to prove that it has not had an effect on their views.
Link: Brown v Sterne & Ors [2025] NIMaster 15 (02 October 2025)
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