EXPERT WAIVED PRIVILEGE WHEN MENTIONING ANOTHER REPORT IN HIS REPORT: “TRIAL BY AMBUSH IS NO LONGER THE ORDER OF THE DAY”

September 6, 2022 · by · in Uncategorized

We are looking again at the judgment of HHJ Paul Matthews (sitting as a High Court judge) in Pickett v Balkind [2022] EWHC 2226 (TCC)  .  Again it is in relation to an issue relating to experts.  An expert had referred to another report which had not been disclosed.  The judge decided that there was no evidence to support the assertion that the undisclosed report was privileged.  Privilege had been waived in any event.

When one considers the purposes of providing such reports in advance, including to enable a fair trial (by giving an opponent notice of the evidence against him), and also to facilitate efficient preparation for trial (and indeed settlement), it seems to me to be too late for a party to say it is not deploying the material in the original report by merely serving it, even though it now repents of its decision to do so. Trial by ambush is no longer the order of the day. Mr Pryce has reached the view that he has in reliance on the earlier report. He cannot now simply say, “Oh well, I would have reached the same conclusion without reference to that report”. So in my judgment privilege has already been waived.

THE CASE

The claimant brings an action against the defendant alleging damage from tree roots.   One of the claimant’s experts was employed by a firm called “Prior Associates”.  The  initial report from the expert and the joint report prreferred to a report from “Prior Associates”. That “Prior Associates” report was not disclosed.  The defendant applied for disclosure of that report.  The claimant sought to provide  “revised” reports without reference to the “Prior Associates” in them.

THE JUDGMENT ON DISCLOSURE

The judge considered arguments that the “Prior Associates” report should not be disclosed.  He held that there was no evidence to support the assertion it was privileged.  Privilege had been waived in any event.
    1. Lastly, I turn to the defendant’s application for production of the “Prior Associates” report referred to by Mr Pryce in the joint statement of the arboriculturists dated 19 May 2022 and in his report dated 12 June 2022. Documents mentioned in witness statements, witness summaries and affidavits are subject to CPR rule 34.14(1), set out above. That rule confers a right on a party to inspect documents mentioned in such documents. However, documents mentioned in an expert’s report are subject to a more restrictive regime contained in CPR rule 34.14(2), also set out above. This confers no right on any party, but instead gives the court a power to order production of such a document, subject to the restrictions contained in rule 35.10(4), just considered.
    1. First of all, I proceed on the basis that Mr Pryce drafted the paragraph in the joint statement which refers to the “Prior Associates” report. The joint statement contains a number of paragraphs which are headed either with the name of Mr Pryce or with that of the claimant’s expert, Mr Hart. These paragraphs read in such a way as to express the views of the individual and not the experts jointly. There is no evidence to show that Mr Hart had any hand in drafting the relevant paragraph in the joint statement. Secondly, I proceed on the basis that the “Prior Associates” report which is mentioned in the joint statement and also in Mr Pryce’s own report is a document which has not previously been disclosed. Mr Pryce says in both places that it contains a discussion about a layer of sand underneath the damaged property and its neighbour, and Mr Cutting’s report disclosed in these proceedings does not do that. No other such “Prior Associates” report is listed in the material said to have been relied on by Mr Pryce. The defendant has asked for a copy of this report, but the claimant has declined, asserting privilege over it. It is clear from this that it is another, so far undisclosed, document.
    1. If this report were part of the claimant’s instructions to Mr Pryce, then it would fall within rule 35.10(4). Accordingly, it would not be privileged, but might only be ordered to be produced if the court were satisfied of reasonable grounds to consider the statement of instructions inaccurate or incomplete. If however the report is not part of the claimant’s instructions to Mr Pryce, then it falls outside rule 35.10(4), and is likely to be privileged, which means that the court can order its production only if privilege has been waived. Ms Chalmers submitted that the report had not been argued to be part of the expert’s instructions, but that it had been deployed before the court, rather than merely referred to, and that therefore privilege had been waived.
    1. Mr Crowley submitted that the earlier report was indeed privileged, and that that privilege had not been waived. He referred to the Court of Appeal’s decision in Jackson v Marley Davenport Ltd [2004] 1 WLR 2926. There the court held that only reports intended to be relied on before the court at trial fell within the rule 35.10(4) regime. Other expert reports (including drafts of the final report) were subject to litigation privilege, as documents brought into existence for the purposes of the litigation. CPR Part 35 did not override that privilege. I am of course bound by that decision. I would therefore have expected some evidence about the circumstances of the creation of the earlier report which would satisfy the test for privilege. As Ms Chalmers pointed out, however, I do not have any such information. Neither the claimant nor anyone on his behalf has given any evidence as to those circumstances. Accordingly, I cannot hold that the claim to privilege is justified. So, I should proceed simply to decide whether to order production under CPR rule 31.14(2).
    1. In case I am wrong to do so, however, I will consider the position as if the report were privileged. In these circumstances, the question would not be whether there are reasonable grounds to consider that Mr Pryce’s statement of his instructions were inaccurate or incomplete. Instead, it would be whether privilege in the earlier report had been waived. This in turn would depend on a combination of two matters. The first is whether the expert report of Mr Pryce merely refers to the earlier report (for example, as an event in the narrative) or whether it relies on (deploys) the content of that report. In the former case, the mere reference would not amount to any kind of deployment, and could not waive privilege. In the latter case, however, the content of the earlier report would be being deployed, and would in principle be capable of operating as a waiver of any privilege in that material. In the present case, I have no doubt that the position is indeed the latter rather than the former. Mr Pryce does not merely refer to the report, he sets out a particular conclusion in that earlier report as a basis for something that he himself says. He has relied on it to reach his own conclusion.
    1. The second matter is whether the deployment of the earlier Pryce Associates report in Mr Pryce’s expert report is binding on the claimant. Generally speaking, only the party or an agent of the party (eg a lawyer) can waive a client’s privilege. A witness (even an expert witness) cannot do so: Donnelly v Weybridge Construction Ltd [2006] EWHC 721 (TCC), [49]-[50]. So, the question is whether the claimant has in effect adopted the deployment of the earlier report for himself. Here, the report was deliberately served by the claimant in compliance with the order of 22 October 2021 made at the costs and case management conference held before HHJ Russen QC. Without more, that simply adopts the deployment by Mr Pryce, and prima facie waives privilege: Bourns Inc v Raychem Corporation [1999] FSR 641, 676, per Aldous LJ. However, the claimant has now attempted to reverse the position, by purporting to withdraw that report and to substitute a different (called “supplemental”) expert report, which does not mention the earlier report.
    1. In his skeleton argument, Mr Crowley relied on a statement in Matthews and Malek on Disclosure, 5th ed, para 16.23:
“Perhaps if the maker goes too far, he can be put to his election as to whether to leave in the reference and produce the document or take it out and retain privilege.”
He did not take me to the cases referred to in support of it, the most important of which are those which I shall consider. However, the first I shall mention is Roberts v Oppenheim (1884) 26 Ch D 724, because it appears to be the foundation of the second. (It is discussed in Matthews and Malek at paragraphs 16.16-16.17.). Here, the plaintiffs sought a declaration and an injunction in respect of certain land which they claimed to own, and in respect of which the defendant was said to be trespassing. In giving discovery in the action, under RSC 1883, Order XXXI rules 12-14, they claimed privilege for certain documents on the ground that they related exclusively to their own title and not to that of the defendant. (This head of privilege was subsequently abolished by the Civil Evidence Act 1968, section 16(2).) However, in their statement of claim, they had specifically referred to some of these documents of title, and also set out their effect.
    1. The defendant applied to the court by summons, seeking production of them on the basis that privilege could not be claimed for documents referred to in pleadings. In part he relied on what he said was the principle behind RSC 1883, Order XXXI, rule 15, although he did not rely on the terms of the rule, for he had given no notice under that rule to the plaintiffs. This rule then read:
“Every party to a cause or matter shall be entitled, at any time, by notice in writing, to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice. And any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such cause or matter, unless he shall satisfy the Court or a Judge that such document relates only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse which the Court or Judge shall deem sufficient for not complying with such notice.”
    1. Kay J explicitly said (at page 733) that he was not now dealing with an application for production under rule 15, but instead with a challenge to the validity of a claim to privilege under the general discovery and production rules. The defendant’s argument was that, if the plaintiffs could be compelled under rule 15 to produce such documents for inspection by the plaintiff, they could not under the general discovery rules (that is, rules 12-14) maintain a claim for privilege to withhold them from such inspection. The judge said (at page 733) that the general rules did not say that, and refused to make any order on the summons, The defendant appealed.
    1. On the appeal, Cotton LJ said (at pages 734-735):
“It is then said that the plaintiffs cannot avail themselves of a claim to protection because they have referred to the deeds in their pleadings, and R.S.C., Ord. 31, r. 15, is relied on. But that rule only says that if a party will not produce a document to which he has referred in his pleadings, he shall not afterwards be at liberty to put such document in evidence. That is the penalty. He may prefer to lose part of his claim rather than produce the document. In my opinion, that rule does not take away the privilege of the documents, but only prevents them from being put in evidence unless produced.”
    1. The other member of the two-judge court, Fry LJ, said (at page 735):
“With respect to the second point, we are invited to say that Order XXXI., rule 15, has introduced a new practice, namely, that where a document is referred to in the pleadings, all privilege with regard to it is gone. The rule does not say any such thing.”
The appeal was accordingly dismissed.
    1. The second case is Infields Ltd v P Rosen and Son [1938] 2 All ER 591. This was an action for infringement of a registered design. The plaintiff had claimed privilege for certain documents on discovery, and the defendants challenged this. Most of the argument about this concerned the right of a litigant in the Chancery Division in those days to have a matter adjourned from the master to a judge. But there was also a point that at an earlier stage, an affidavit had been sworn by a director of the plaintiff, referring to some of the documents said to be privileged. As to this, Sir Wilfred Greene MR (with whose judgment Scott LJ agreed) said, at page 597C-E:
“First of all, the reference in this paragraph to those documents does not, in my judgment, amount in any sense to a waiver of the claim of privilege. It would, I think, have been competent to the defendants, when it was proposed to read that paragraph, to object to its being read unless the documents were produced. That course was not taken, and the mere fact that the paragraph was read and relied upon without objection does not, in my opinion, amount to a waiver of the privilege. It has been laid down that a reference to a document in a pleading does not amount to a waiver of a claim of privilege.”
The Master of the Rolls then went on to refer to Roberts v Oppenheim in support of the last sentence. The third judge, MacKinnon LJ, agreed with the proposed order, but gave a short concurring judgment of his own.
    1. Thirdly, in Government Trading Corporation v Tate & Lyle International Ltd, The Times, 24 October 1984, the respondent had sold sugar to an Iranian company. An issue arose as to whether the appellant was now liable to the respondent under the relevant contracts. At an earlier stage, the respondent’s solicitor had sworn an affidavit setting out what he understood to be the effect of the relevant Iranian law, stating (as he was obliged to do under the rules) that the source of this was advice given by a firm of Iranian lawyers. The appellant argued on the later trial of a preliminary issue that privilege had thereby been waived in the relevant Iranian law advice. Webster J rejected that argument, and the appellant appealed to a two-judge Court of Appeal.
    1. Robert Goff LJ (with whom Oliver LJ agreed, though he added a short concurring judgment of his own) held that the reference to the effect of the advice was not sufficient to waive privilege, and dismissed the appeal. In the course of doing so, he referred to the earlier decision in Infields Ltd v P Rosen and Son [1938] 2 All ER 591, and continued:
“The learned Master of the Rolls, however, held that this did not amount to a waiver of privilege, but was simply what he called a reference to a document. He referred to the fact that if, for example, a document is referred to in a pleading, the other side could apply to the court for production of the relevant document. If so, the party who has referred to the document in his pleading may prefer to withdraw his pleading rather than produce the document. If he does so, then there is no waiver of privilege, because the waiver of privilege in those circumstances, if it does occur, will take place on the production of the document and not upon the reference to the document in the pleading.”
    1. It will be seen that the first case, Roberts v Oppenheim, turned on the wording of the then rule, RSC 1883, Order XXXI, rule 15. This provided for a notice procedure for obtaining production of documents referred to in pleadings. The explicitly stated sanction for non-compliance with the notice was however that the party in default could not admit the document in evidence, and it was this sanction to which Cotton LJ referred. It did not provide for the party in default to have the option of withdrawing the relevant pleading, and Cotton LJ did not suggest that this was possible.
    1. The second case, Infields Ltd v P Rosen and Son, was one which referred back to Roberts v Oppenheim, but where the reference to a privileged document occurred in an affidavit rather than in a pleading. Sir Wilfred Greene MR did not refer to the sanction of non-admissibility of the document referred to, but instead to the possibility that the party putting forward the offending affidavit might prefer not to rely on the relevant paragraph, rather than to produce the document referred to in it. But in any event he rested his decision on the point that a mere reference to privileged documents did not involve a waiver of the privilege.
    1. Thirdly, I observe that, by the time of Government Trading Corporation v Tate & Lyle International Ltd, RSC 1883, Order XXXI rule 15 had been replaced by RSC 1965, Order 24 rules 10-13. Rule 10(1) provided that:
“Any party to a cause or matter shall be entitled at any time to serve a notice on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof.”
    1. However, the sanction of non-admissibility of the document referred to, previously provided in rule 15 of Order XXXI, had been replaced, by rule 11(1) of the new Order 24, with a power for the court to order production of that document. In other words, the boot was very much on the other foot. Robert Goff LJ referred to the earlier cases, though without adverting to the change in the wording of the rule, and simply amalgamated the twin statements of Cotton LJ and Sir Wilfred Greene MR. He said simply that the party who had referred to the document in his pleading might prefer to withdraw his pleading rather than produce the document. Then there would be no waiver.
    1. Accordingly, on closer examination of the relevant authorities, and faced with the facts of the particular case, I have to say that they do not strike me as a sound basis for this tentative conclusion. So, I must consider the matter afresh, in the light of the modern rules and the facts of this case. A party who has obtained an expert report after an order has been made for the admission of such a report in evidence is not obliged to produce it to the other side, if the party decides not to use it or to call the expert: Carlson v Townsend [2001] 1 WLR 2415, CA. But, if he or she does not, the report may not be used, or the expert called, at the trial without the court’s permissions: CPR rule 35.13. In the present case, however, the claimant here has served the report, thereby demonstrating an intention to rely upon it at trial. CPR rule 35.11 provides that, where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial.
    1. These are not the rules which prevailed when the earlier authorities were decided. As Hobhouse J (as he then was) said a generation ago in Sveriges Anfatygs Assurens Forening v The 1976 Eagle Assurance Co Ltd, unreported, 28 March 1990,
“the citation of 19th century cases decided under different circumstances … and under different Rules of Court is not a correct approach to practical questions of procedure in the last decade of the 20th century under the present Rules of Court.”
How much stronger the point is now that our rules have been completely replaced by a new system with a different culture, including the new ‘overriding objective’ in CPR Part 1. Many decisions of the Court of Appeal since have deprecated attempts to rely on pre-CPR caselaw. In Biguzzi v Rank Leisure plc [1999] 1 WLR 1926, Lord Woolf MR, architect of the new CPR, said (at page 1934G):
“Earlier authorities are no longer generally of any relevance once the CPR applies.”
    1. I accept that in the present circumstances the court has not yet sat to receive the expert evidence of Mr Pryce. But, whether or not the court may permit the claimant to serve a further expert’s report, the claimant cannot now prevent the original’s being admitted in evidence. When one considers the purposes of providing such reports in advance, including to enable a fair trial (by giving an opponent notice of the evidence against him), and also to facilitate efficient preparation for trial (and indeed settlement), it seems to me to be too late for a party to say it is not deploying the material in the original report by merely serving it, even though it now repents of its decision to do so. Trial by ambush is no longer the order of the day. Mr Pryce has reached the view that he has in reliance on the earlier report. He cannot now simply say, “Oh well, I would have reached the same conclusion without reference to that report”. So in my judgment privilege has already been waived.
    1. The result is that, whichever view is taken of the lack of evidence of the circumstances of the genesis of the earlier Prior Associates report, it is not privileged from production. Should it therefore be disclosed under CPR rule 31.14(2)? In my judgment it should. The claimant has, in accordance with HHJ Russen QC’s order, filed and served Mr Pryce’s report relying on the earlier report, seeking to gain the advantage of praying in aid the contents of that earlier report. It would not be right for the claimant to do so without disclosing the whole of it, so that the defendant can be satisfied that the claimant is not cherry picking.
  1. Accordingly, I will order that the claimant produce to the defendant a copy of the earlier Prior Associates report.