Edwards-Tubb v JD Wetherspoon Plc
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes,Lord Justice Richards |
| Judgment Date | 25 February 2011 |
| Neutral Citation | [2011] EWCA Civ 136 |
| Docket Number | Case No: B3/2010/1339 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 February 2011 |
[2011] EWCA Civ 136
Before: the Master of the Rolls
Lord Justice Richards
and
Lord Justice Hughes
Case No: B3/2010/1339
8TA02052
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL COUNTY COURT
His Honour Judge Denyer QC
Mr Timothy Grice (instructed by Harris Fowler)for the Claimants/Respondent
Mr Jonathan Payne (instructed by Kennedys Law Llp) for the Defendant/ Appellant
Hearing dates: 1st February, 2011
Lord Justice Hughes:
In a personal injuries action, as in any other litigation, the parties need the leave of the court to rely on expert evidence. CPR 35.4 states baldly:
"No party may call an expert or put in evidence an expert's report without the court's permission."
If the claimant has obtained a medical report from expert A, but chooses not to rely on it, and the leave he seeks is to rely on the evidence of expert B in the same field, ought he to be put on terms that before he can rely on B, he must disclose what A has said ? That is the question raised in this appeal.
The claimant suffered a fall at work in October 2005. To anticipate, his defendant employers have accepted liability for the fall. The case is not medically straightforward because whilst he appeared at first to have hurt his knees, or perhaps his knees and his back, his claim is that he is suffering chronic whole-body pain which is having a grave effect upon his life, for which no organic cause can be found, and that it was caused by this accident.
The claim is governed by the pre-action protocol for personal injuries actions: see Civil Procedure at C2–001. This protocol, like others of its kind, was devised by Lord Woolf at the time of his Access to Justice report, for the purpose of providing for good practice, with a view to facilitating settlement if it is possible and expedition and cost-efficiency if it is not. It specifically refers to its aims to improve pre-action contact between parties and to achieve better and earlier exchange of information. At paragraph 2.4 it refers to the 'cards on the table' approach and stipulates that whilst some of its detail is designed for fast track cases, the court will expect its spirit to be observed in larger value claims, "eg in respect of letters before action exchanging information and documents, and agreeing experts."
Whilst the protocol alters directly neither the substantive nor the procedural law, it is made relevant by the Rules to the exercise of the court's powers. CPR 3.1(4) provides that the court may take into account generally, in giving directions for the conduct of the action, whether a party has or has not complied with the protocol. Specifically, if he has failed to do so without good reason, then 3.1(5) allows the court to order him to pay money into court as a condition of proceeding. In similar manner, CPR 44.3(5)(a) makes compliance with the protocol a relevant consideration when the court is deciding questions of costs. In practice, compliance with the protocol is a matter of importance in the case management of personal injuries actions.
Under the protocol (paragraph 3.15), the parties are expected to give notice to the other side of the names of experts they might instruct, and to afford them the opportunity of objecting to any of those experts. The purpose of that is clearly to achieve where possible the instruction of an expert in whom the other side has confidence. This claimant duly gave such notice, by letter before action in approved protocol form, dated 9 November 2006. His solicitors listed three orthopaedic surgeons whom he might instruct, and invited any objection to any of them within 21 days. One of those was a Mr Jackson; the others were Messrs Hepple and Eldridge. In the event the defendants, through their insurers, did not respond until 16 March 2007, but nothing turns on the delay. They did not, when replying, object to any of the nominated surgeons. They did make a counter offer to pay for a medical report if liability was in due course admitted and if the report were to be obtained through one or other of two agencies. The insurers said this of such a report:
"Although the report will not usually be on a joint basis, we would anticipate that you would disclose it in the majority of cases, to facilitate settlement. In the event that either the report is not disclosed, or we do not accept its conclusions we reserve the right to obtain our own."
So the counter-offer made clear that separate, rather than joint, instructions were contemplated and that any report would remain privileged unless and until disclosed for the purpose of being relied upon. In the event, the counter offer was not taken up, as clearly it did not have to be. The claimant's solicitors, as is now known, instructed one of the three surgeons they had nominated, namely Mr Jackson. He examined the claimant on 19 March 2007 and provided a report dated 14 May 2007. That report has never been relied upon or disclosed by the claimant.
Proceedings were issued close to the expiry of the limitation period on 8 October 2008. By then the defendants had admitted liability, leaving the extent of injury and quantum as the live issues. The CPR require the particulars of claim in a personal injury case to attach any medical report relied upon ( CPR 16PD.4). These particulars of claim were supported by the report (in fact served shortly beforehand) of a different orthopaedic surgeon, Mr Khan. He had seen the claimant on 14 July 2008 and his report was dated the same day. Mr Khan's report, in traversing quite a long medical history, revealed that the claimant had seen "an orthopaedic surgeon in Bristol for a medico-legal consultation." That, plus the fact that Mr Khan was not one of the surgeons originally nominated by the claimant's solicitors, alerted the defendants to what had occurred.
In due course the defendants issued an application for the disclosure of the earlier report of Mr Jackson. They conceded that they had no absolute right to its disclosure, but presented their application on the basis that such disclosure ought to be made a condition of the permission which the claimant needed under CPR 35.4 to rely on Mr Khan.
There is no doubt about the general power of the court to grant relief by way of case management directions which are subject to conditions. That is an important general power and is specifically provided for in CPR 3.1(3)(a): see, recently, Huscroft v P & O Ferries [2010] EWCA Civ 1483 especially at paragraphs 17 and 18.
Equally, there can be no doubt that the report of Mr Jackson was and is a privileged document. It was obtained by the claimant for the purposes of advice about, and the conduct of, litigation. The privilege belongs to the claimant and not to the doctor. His privilege to keep this document to himself is a substantive right in law. That privilege is a legal concept of considerable importance is demonstrated by a long succession of cases, of which R v Derby Magistrates Court ex p B [1996] AC 487 is perhaps the most striking. As that decision makes clear, there is no question of balancing privilege against other considerations of public interest; the balancing act has been accomplished many years ago and was resolved by preserving the right of privilege. A person in possession of a privileged document cannot be criticised for claiming the privilege and declining to waive it, nor can any adverse inference be drawn against him from his claim: Wentworth v Lloyd (1864) 10 HLC 589 and Sayers v Clarke Walker [2002] EWCA Civ 910. Thus in a case like the present, it is not permissible to infer at trial from the claimant's stand upon the privileged nature of Mr Jackson's report that that report was unfavourable to him.
That is not to say that circumstances may not sometimes lead to the practical necessity to waive privilege. A litigant who sues former advisors will normally have to waive privilege in order to get his case off the ground. The same may be true of, for example, an appellant who contends that his criminal conviction was the result of incompetent advocacy in the court of trial. A litigant who wishes to establish the chronology or content of advice received will often have to waive privilege to do so. So may a litigant who wishes to demonstrate that, contrary to appearances, his account of events is not new. It is not uncommon for litigants to be confronted by such choices between waiver and the abandonment of a line of attack or argument.
The question of principle which this case raises is whether the power to impose a condition on the grant of permission to rely on expert B can properly be employed to require the disclosure of the privileged report of expert A, and if so when. If this is proper, what is being done is not directly to override the privilege, because the claimant can elect to stand upon his right to it. Rather, it is presenting the claimant with a price which must be paid for the leave of the court to rely on expert B; that price is waiver of privilege in relation to expert A. It is necessary to recognise that whilst a claimant in a personal injuries action could in theory proceed without medical evidence, and may do so in a simple case of transient injury easily provable, in a case such as the present some medical evidence is a practical necessity. Accordingly the order sought will have the effect of curtailing the operation of privilege by making waiver the price of being able to continue in reliance on...
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