Expert Reports in UK Law

I should mention one further practical matter, which I think is relevant to large commercial disputes. There is a tendency to think that a judge will be assisted by expert evidence in any area of fact that appears to be outside the "normal" experience of a Commercial Court judge. The result is that, all too often, the judge is submerged in expert reports which are long, complicated and which stray far outside the particular issue that may be relevant to the case.

It seems to me to be axiomatic that a fact-finder must not reach his or her conclusion before surveying all the evidence relevant thereto. What the fact-finder does at his peril is to reach a conclusion by reference only to the appellant's evidence and then, if it be negative, to ask whether the conclusion should be shifted by the expert evidence.

There can be no doubt that, if an expert makes a report for the purpose of a party's legal advisers being able to give legal advice to their client, or for discussion in a conference of a party's legal advisers, such a report is the subject matter of litigation privilege at the time it is made. It is common for drafts of expert reports to be circulated among a party's advisers before a final report is prepared for exchange with other side.

I cannot believe that the Civil Procedure Rules were intended to override that privilege. CPR 35.5 provides that expert evidence is to be given in a report unless the court directs otherwise. CPR 35.10 then changed the previous law by providing in sub-rule (3) that the expert's report must state the substance of all material (whether written or oral instructions) on the basis on which the report was written.

Whilst this on the face of it has some obvious validity, we consider that the advice and information provided in such letters must be given significant weight as it is compiled by professional diplomats who we consider are skilled and trained in the observation and acquisition of knowledge in the countries where they are based. Their opinions should be given equal value to that of a well-informed, balanced country expert who provides sources and evidence of his or her expertise.

A question that was not considered in Beck is whether the condition of disclosure should relate only to the first expert's final report, or whether it should also relate to his or her earlier draft reports. In our view, it should not only apply to the first expert's "final" report, if by that is meant the report signed by the first expert as his or her report for disclosure. It should apply at least to the first expert's report(s) containing the substance of his or her opinion.