Lucas v Barking, Havering and Redbridge Hospitals NHS Trust

JurisdictionEngland & Wales
JudgeLord Justice Waller:,Lord Justice Mantell,Lord Justice Laws
Judgment Date23 July 2003
Neutral Citation[2003] EWCA Civ 1102
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: A2/2002/2492
Date23 July 2003
Between:
Lucas
Appellant
and
Barking, Havering & Redbridge Hospitals NHS Trust
Respondent

[2003] EWCA Civ 1102

Before:

Lord Justice Waller

Lord Justice Mantell and

Lord Justice Laws

Case No: A2/2002/2492

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEENS BENCH DIVISION

Master Ungley

Royal Courts of Justice

Strand,

London, WC2A 2LL

Mr J Donovan (instructed by Gadsby Wicks solicitors) for the appellant

Mr D Westcott QC (instructed by Kennedys solicitors) for the respondent

Lord Justice Waller
1

This appeal raises a point of some significance in relation to the proper construction and interaction of CPR 31.14(1) and (2) and CPR 35.10(3) and (4).

Those provisions read as follows:-

"31.14 (1) A party may inspect a document mentioned in:

(a) a statement of case;

(b) a witness statement;

(c) a witness summary; or

(d) an affidavit

(e) revoked

(2) Subject to rule 35.10(4), a party may apply for an order for inspection of any document mentioned in an expert's report which has not already been disclosed in the proceedings.

35.10

……

(3) The expert's report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.

(4) The instructions referred to in paragraph (3) shall not be privileged against disclosure but the court will not, in relation to those instructions —

(a) order disclosure of any specific document; or

(b) permit any questioning in court, other than by the party who instructed the expert, unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete."

2

Mr Lucas is making a claim for personal injury suffered as he alleges as a result of negligence by the defendant. With his particulars of claim he produced as required by the rules two experts' reports relating to his injuries. Those reports both referred to a witness statement of Mr Lucas provided to the experts. One report also referred to a previous report of an expert. The defendants in reliance on CPR 31.14(2) sought an order for inspection of those documents. The claimant unsurprisingly was reluctant to disclose a witness statement or an expert's report other than by exchange at the due time. The application was resisted on the basis that the documents requested were part of the instructions provided to the experts, and fell within the exception identified in CPR 31.14.(2) i.e. CPR 35.10(4). The defendants did not suggest before the Master that if the statement and/or the report were instructions within CPR 35.10(4) that there was any basis on which the court should conclude that an order for inspection should be made on the grounds that CPR 35.10(3) had not been complied with.

3

The defendants were successful in obtaining an order for inspection under CPR 31.14(2) from Master Ungley. We have a note of his decision which is in the following terms:-

"My decision is not affected by the decision of Hart J in Morris v Bank of India 15th January 2001 and reported on rather different facts, because this application is made on almost identical facts to those in Taylor v Bolton Heath Health Authority (Morland J 14 th January 2000 Lexis transcript unreported). Following the decision of Morland J and the overriding objective I shall direct that the report of Mr Durdy and the claimant's witness statement be disclosed."

4

Thus the Master felt bound by the decision of Morland J but he granted permission to appeal. The matter has come directly to us.

5

In fact Morland J's decision was concerned with CPR 31.1(4) at a time when it was in slightly different terms. At that stage there was no CPR 31.14(2). 31.14(1) included a sub-paragraph (e). The effect of 31.14(1)(e) added "expert's report" to the list of documents in which documents might be referred to and in relation to which the rules gave a right of inspection albeit even at that time "subject to rule 35.10(4)". The distinction between the former provision and the current provision seems to be that formerly prima facie there was a right to inspect the documents referred to in experts' reports as in the other specified documents, whereas now in relation to experts' reports an application must be made to obtain inspection. However the word "instructions" must have the same meaning whether the court was considering the old form of provision or the new provision since Order 35.10.(4) has in no way been amended.

6

The reasoning of Morland J was to the following effect. He appreciated the obligation of the expert under CPR 35.10(3) to set out "the substance of all material instructions". He referred further to the relevant practice direction 35PD.2.2(3) requiring the report to "contain a statement setting out the substance of all facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based". Morland J then said this:-

"In my judgment instructions are what an expert is told to do. What answers he is asked to give to specific questions. This is illustrated, in my judgment, by the first paragraph of Dr Wazou's report dated 18 August 1997, in which he says:

"I have been instructed to examine Donna Taylor and provide a report on her development from birth, her present neurological and general health state, prognosis for the future and estimation of life expectancy."

In my judgment, those in very short form are the instructions given by the claimant through her solicitors to Dr Wazou. Dr Wazou then goes on to say:

"Donna was seen in the presence of her parents. I had available to me at the time of preparing this report documentary medical evidence supplied to me by instructing solicitors",

and then he sets out those reports, including medical reports by Professor Malcolm Levine dated May 1997.

In my judgement, the material upon which an expert is asked to comply with his instruction to answer questions, give a prognosis, etc are not part of the instructions, but the basic material upon which the expert is asked to reach his conclusions in accordance with his instructions, and therefore, in my judgment, the material, the basic material supplied to the expert is not part of the instructions. I bear in mind that the philosophy of the CPR is cards on the table. I have in mind that of course the court and cases should not be encumbered by a prolixity of documents, in particular if they are not necessary."

7

No claim to privilege appears to have been argued and Morland J ordered disclosure.

8

The above narrow construction preferred by Morland J is to be contrasted with a rather different view of Hart J in the case to which the Master referred. It is necessary to set out some detail of the problem before Hart J in order to place the approach of the judge in context. The case was a banking case and one in which it had been agreed to exchange expert evidence prior to the evidence of witnesses of fact. In the expert's report of a Mr Wragg reference was made to his understanding of the position, an understanding which he can only have obtained from information supplied either by his solicitors or by his clients. The complaint on the application before Hart J was that the expert had not complied with the provisions of CPR35.10 including the provisions of CPR35.10(3) or the practice direction previously quoted. Mr Wragg's report did not contain any reference to having been provided with a statement but contained information that he must have obtained either from the statement or from the solicitors. There was further before the judge an affidavit of a Mr Dubash explaining how Mr Wragg had been instructed including a statement that certain factual information had been supplied to Mr Wragg; that statements would have been referred to if they had been exchanged prior to the expert's report and an assertion that Mr Wragg was asked not to rely on privileged material in preparing his report. The judge then said this:-

"As it appears to me, the expert's report is, as it stands, defective in that it does not contain "a statement of the substance of all material instructions, whether written or oral, on the basis of which the report was written". I am quoting from subrule (3) of part 35.10. Taking Mr Dubash's statement at face value, it would appear that the report would have so complied had it said that it was based on, inter alia, in addition to the matters that are referred to in the report, the matters confirmed to him by Mr Dubash as being factual information on which to base the report, and had then stated what the substance of that factual information was. That would have to have been done either by reference to a document if the confirmation had in fact been contained in a document, or by a summary of the oral communication if it had been by an oral communication.

The fact of the matter is that there is no statement in the expert's report of the statement required by subrule (3). It appears to me that this is a case where I can be satisfied that the statement of instructions purportedly given in the report is inaccurate or incomplete within subrule (4) of Part 35.10. It is therefore open to the court to order disclosure of the instructions which were given to Mr Wragg for the purposes of his report.

The application is resisted on the part of the defendants insofar as it is an attempt by the claimants to obtain disclosure of draft witness statements which may or may not at some stage or another have been supplied to Mr Wragg. However, they say that insofar as all that is sought is an identification of all those matters in the report which are the subject of oral or written...

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