The Case
The claimant made an application for an order compelling the second defendant to disclose communications between its solicitors and its experts in relation to the preparation of joint expert statements. The defendant contended that the material was privileged, that privilege had not been waived, and other potential exceptions were not engaged.
The defendant’s solicitors described the communications as being:
- To discuss logistics and timing, and
- To raise issues of clarity or completeness with a view to ensuring that the joint statement is as helpful as possible for the court in identifying the key issues between the experts and articulating clearly each expert's position on those issues.
Civil Procedure Rules rule 35.10
There was no dispute as to the basic principle that communications between solicitors and the expert witnesses they instruct are generally subject to litigation privilege. The only quasi-statutory exception is contained in the Civil Procedure Rules (‘CPR’) rule 35.10 which requires an expert report to state the substance of all material instructions on the basis of which the report was written. Rule 35.10(4) states that these instructions are not privileged but a court will not order disclosure of the documents containing the instructions… “unless it is satisfied that there are reasonable grounds to consider the instructions in the expert’s report to be inaccurate or incomplete”.
The effect of the rule 35.10 is for the expert to state the factual assumptions he or she was required to make for the purpose of expressing an opinion, not to state the substance of all communications. If the documents do not fall within the limited subset of documents referred to in CPR rule 35.10, then they are privileged and remain so until privilege is waived.
While the judge did not reach a concluded view on whether, in principle, CPR rule 35.10(4) is capable of applying to instructions given ahead of a joint meeting, he noted that “on a purposive construction of that provision, I see no reason why it should not”. In this case, however, the rule did not apply as there was no indication that the instructions concerning the factual assumptions that the defendant’s experts were to make had been given.
Other exceptions to litigation privilege
The judge then considered whether the documents sought fell within another exception to litigation privilege or if privilege can be said to have been waived.
While legal professional privilege, of which litigation privilege is a variant, does not exist for documents that are part of a criminal or fraudulent proceeding, that was not relevant in this case.
Counsel for the claimant contended that the material was not privileged because of paragraph 13.6.3 of the Technology and Construction Court (‘TCC’) Guide and principles which have been derived from this paragraph. Paragraphs 13.5.2 and 13.6.3 state:
"13.5.2. In many cases it will be helpful for the parties' respective legal advisers to provide assistance as to the agenda and topics to be discussed at the experts' meeting. However, save in exceptional circumstances and with the permission of the judge, the legal advisers must not attend the meeting. They must not attempt to dictate what the experts say at the meeting ...
"13.6.3. Whilst the parties' legal advisers may assist in identifying issues which the statement should address, those legal advisers must not be involved in either negotiating or drafting the experts' joint statement. Legal advisers should only invite the experts to consider amending any draft joint statement in exceptional circumstances, where there are serious concerns that the court may misunderstand or be misled by the terms of that joint statement. Any such concerns should be raised with all experts involved in the joint statement ...."
However, the judge found this did not support the conclusion that a communication by a solicitor with an expert is not, or ceases to be, privileged. He noted that "[t]here is nothing within either the TCC Guide or CPR Part 35 (other than CPR rule 35.10.4) or any practice direction that disapplies litigation privilege as a result of such considerations and the insertion of the limited exception in CPR rule 35.10.4, suggests that no such wide ranging disapplication was intended or made."
The judge concluded that “it would be wrong in principle to direct disclosure of the documents sought unless it can be shown that privilege had been waived.” The judge did not reach any final conclusion on the waiver issue, adjourning the application for it to be determined by the trial judge at the start of the trial.
Learning points
Learning points for instructing parties:
- Any application for disclosure should be made as early as possible so it can be fully considered by the court and are not seen as a distraction to the trial.
- Documents that do not fall within the limited subset of documents referred to in CPR rule 35.10 are privileged until privilege is waived.
- While the matter is undecided, instructing parties would be wise to consider CPR rule 35.10(4) when giving instructions ahead of a joint meeting.