Jackson v Marley Davenport

Posted on 09/09/2004 · Posted in Expert Witness

Disclosure of expert reports during proceedings

The Defendant was Marley Davenport Limited, a construction company. The Claimant was Mr Jackson, an employee of the Defendant. The Claimant had been instructed to work in a concrete pond, a ladder providing the only access. While using the ladder the Claimant fell backwards, sustaining severe injury to his head and spine. The Claimant asserted that there were pallets obstructing access to the ladder and that the ladder was not properly secured, although he could not remember the accident itself.

The parties were instructed to each appoint a pathology expert. The Claimant’s expert prepared 2 reports, and the second of those reports was served on the Defendant. It seemed probable that the expert might have changed his approach to the case between the 2 reports. The Defendant sought to have the first report disclosed.

The judge considered CPR 35.13. CPR 35.13 provides that a party cannot use a report at trial or call the expert to give oral evidence if he fails to disclose an expert’s report. The judge felt that this did not give the court the power to order disclosure of expert reports made earlier than the expert report ultimately disclosed for the purposes of trial. It simply meant that a report could not be relied upon at trial unless it had been disclosed and that an expert could not give oral evidence unless he had disclosed a report. The initial report was protected by litigation privilege and the CPR was not intended to override that privilege.

Link: Jackson v Marley Davenport [2004] EWCA Civ 1225

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