Litigation Privilege and Expert Opinion Evidence
| Author | Rosemary Pattenden |
| Published date | 01 December 2000 |
| DOI | 10.1177/136571270000400401 |
| Date | 01 December 2000 |
| Subject Matter | Article |
Litigation
privilege
and
expert
opinion evidence
By
Rosemary
Pattenden
University
of
East Anglia
lthough litigation privilege is well established, many of its nuances
are not.’ This article examines
two
areas of uncertainty that have not
attracted the attention that they deserve:
1.
the extent to which the opinion of an expert2 and evidence connected
with such an opinion (instructions, working papers, existing and newly
created material submitted to the expert for analysis, oral history from the
client) are protected by litigation privilege and, since it has a bearing on
the scope
of
protection,
2.
the rationale for litigation privilege.
The article sets out to map the relevant English law to the extent that it is
certain and to highlight issues, including contradictory approaches by
judges, that, sooner
or
later, will be raised before the courts. Cases and
legislation from other common law jurisdictions are drawn on to
fill
gaps and
for contrast.
To
be comprehensive the analysis covers both the expert whose
opinion is adduced, whether in written
or
oral form, by the party who
introduced him to the case (the ‘testifying e~pert’~ in United States’
discourse)‘ and the expert whose opinion is withheld by that party (the
‘consulting expert’)?
1
General
Accident
Assurance
Co.
v
Chrusz
(1999) 180
DLR
(4th)
241
at
295.
2
An
expert is someone who through training, experience or education has expertise on a subject
3
In modern English civil litigation a party is more likely to rely on a written report than oral
4
This
distinction was adopted
in
National Steel
Products
Co.
v
Superior
Court
(1985) 164
Cal App
3d
5
An
expert’s opinion will not be adduced if it is either unfavourable
or
the expert was engaged
exceeding that of the average person.
evidence.
476.
in a purely advisory capacity to help prepare the case for trial.
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LITIGATION PRIVILEGE AND EXPERT OPINION EVIDENCE
Litigation
privilege
Prerequisites
In the law of evidence privilege allows relevant, reliable and otherw,
.
admissible evidence to be suppressed for reasons of public policy in civil a.
,
criminal litigation. Legal professional privilege is one
of
the major privilege
It consists of two overlapping7 strands? legal advice privilege, whi
1
embraces lawyer-client communications. and litigation privilege. MGst
successful claims to litigation privilege in English law have involved third
party-lawyer communications, the classic example of which is the expert
report commissioned by a lawyer on behalf
of
a client? Initially where a third
party was involved only communications between that party and the lawyer
(or his agent) were protected;'0 it is now accepted that litigation privilege
extends to communications (whether or not suggested by the lawyer) between
the third party and the client" and, probably, a third party and a litigant in
person.'2
For
a communication to be protected by litigation privilege. litigation must
6
The extent to which legal professional privilege is a substantive rule
of
law that applies outside
the legal arena will not be pursued in this article. It is, however, an important issue left open by
R
v
Derby Magistrates, ex p.
B
119951 4
All
ER
526.
The issue is pursued by J. Auburn in
Legal
Professfonal privilege
(Oxford,
2000).
7
The overlap occurs mainly in respect of lawyer-client communications relating to litigation
but also in respect of the lawyer's own work (see
infra
n.
60).
It is settled law that
communications between client and lawyer
for
the purpose of obtaining legal advice fall
within the scope of legal advice privilege whether
or
not litigation is anticipated:
Buttes
Gas and
Oil
v
Hammer (No.
3)
(1980l 3
All
ER
475
at
484.
The concept of 'legal advice' has become
so
broad
(see
Balabel
v
Air India
(19881
Ch
317
at
330)
that it is capable of covering all lawyer-client
communications relating to anticipated
or
actual litigation. The overlap would be removed and
analytical clarity promoted if the courts were to decide that lawyer-client communications.
whether
or
not
for
litigation, were the
exclusive
preserve
of
legal advice privilege. It is noticeable
that Lord Jauncey treated
R
v
Derby Magistrates' Court, ex
p.
B
(19951 4
All
ER
526
in
Re
L
(A Minor)
(Police Investigation: privilege)
(19961 2
All
ER
78
at
83
as an instance
of
legal advice privilege and
not
of
litigation privilege even though the legal advice was in respect of litigation.
8
To
split legal professional privilege into
two
strands is a relatively modern idea, given impetus
by Lord Denning MR's judgment in
Buttes
Gas and Oil
v
Hammer (No.
3)
119801 3
All
ER
475
at
484.
Litigation privilege is not, however, a modern invention: it is supported by more than
100
years
of
authority: e.g.
Woolley
v
North London Railway
Co
(1869)
LR
4
CP
602
at
611.613;
Bustros
v
White
(1876)
1
QBD
423
at
472;
Re Holloway; Young v Holloway
(1887) 12
PD
167
at
170.
9
Skinner
v
Great Northern Ry
(1874)
LR
9
Ex
298;
Pacey
v
London Tramways
Co
(1876) 2
ExD
440;
Worrall
v
Reirh
(19551
1
QB
296
at
301.
10
Steele
v
Stewart
(1844) 41
ER
711
at
713.
11
Southwark Water
Co
v
Quick
(1878) 3
QBD
307
at
318:
Re Highgrade Traders Ltd
(19841
BCLC
151
at
172.
12
Bakerv Campbell
(1983) 153
CLR
52
at
90:
Ventourts
v
Mountain
(The
Italia
Express)
119911
3
All
ER
472
at
475.
Cp. Evidence Act
1995
(Cw).
s.
120.
Contrast
Re
Holloway; Young
v
Holloway
(1887) 12
PD
167;
NEMGA
v
Waind
(1979) 141
CLR
648
at
654.
214
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EXPERT OPINION EVlDENCE
have been in c~ntemplation'~ or in existence when it was made" and the
dominant motive for making it must have been to obtain advice or evidence
or information needed to prosecute or defend the action."
A
third
prerequisite is confidentiality.I6 But the cases (in contrast to some textbooks
on eviden~e)'~ show that confidentiality has a restricted meaning. First. it is
not essential for the
information
communicated to be a secret in the way that
information capable of supporting an action for breach
of
confidence must
be secret, or at least known only to a select few.I8 In
Lyell
v
KennedyIg
copies
of
public records made by the defendant's lawyer, who in selecting the
documents to
be
copied exercised professional skill and knowledge, were held
to be privileged. In
Feuerheerd
v
London General
Omnibus
CO."
privilege attached
to a signed proof of evidence taken from opponents who mistakenly believed
they were meeting a representative of their own solicitors. Even if the facts
contained within a privileged communication are initially unknown to all
but the lawyer, client and third party they may have to be disclosed to an
opponent under the Civil Procedure Rules
1998
and pretrial protocols?'
Litigation privilege does not immunise the underlying facts from
disclosure.22 Secondly, there is no need for a privileged communication from
a third party to have been made either with the expectation, or under an
obligation, of confidentiality. While an expert witness will usually be under a
contractual duty to the party by whom he has been retained not to disclose
the contents
of
his communications with that partyz3 or even sometimes
from talking to the other side about the case, this will not be true of a witness
to a disputed event from whom the lawyer has taken a statement for
13
By
the client, but not necessarily the third party:
Esso
Australia Resources Ltd
v
Commissioner
of
Taxation
(1999) 74
ALJR
339
at
355.
r
14
Re
L
(A Minor) (police Inwstigation: Privilege)
(19961 2
All
EX
78
at
91.
15 Waugh
v
Btitish Railways Board
(19791 2
All
ER
1169
at
1173. 1184.
16
R
v
R
(19941 4
All
ER
260
at
265;
VJSX
Jnc.
v
Nidex
(19991
FSR
91
at
102. 104.
For an early case
requiring confidentiality, see Dartmouth
v
Holdworth
(1840)
10
Sim
476.59
ER
700
at
701.
17
M.
Howard (ed.), Phipson
on
Evidence. 15th edn (London,
2000) 507
and
I.
Dennis.
The
Law
of
Evidence (London.
1999) 330
are typical in not elaborating upon what 'confidential' means in
relation to litigation privilege. The assumption is that the requirement of confidentiality for
litigation and legal advice privilege is identical.
18
There are circumstances in which the subject-matter communicated may be in the public
domain: Health
6
Life
Care
Ltd
v
Price
Waterhouse
(1999) 69
SASR
362
at
369.
19 (1844) 27
ChD
1.
20 119181 2
KB
565.
This decision has been doubted. It has been said that nothing that takes place
in the presence of the opposite party is privileged: Ainnvorth
v
Wilding
I19001 2
Ch
315
at
324;
Party
v
News Croup Newspapers
Ltd
(1990) 140
NLJ
1719.
WSX
Jnc.
v
Nidex
119991
FSR
91
at
103, 106.
It is difficult to argue that a record made in the presence of. and perhaps with the assistance
of. an opponent was intended to form part of a confidential trial brief, the rationale put
forward in this article for litigation privilege.
21
Cp. Arcola School Division
No.
72
v
Hill
(1999) 179
DLR (4th)
539
at
544.
22
Southwork and Vauxhall Water
Co.
v
Quick
(1878)
3
QBD
315
at
321.
23
Ritz Hotel Ltd
v
Charles
of
the
Ritz Ltd
(1988) 14
NMR
132
at
133-4.
The contractual relationship
may
also give rise to an equitable obligation of confidentiality.
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