PI Brief Update

PI Practitioner, July 2013

15/07/13. Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. You can also receive these for free by registering for our PI Brief Update newsletter. Simply fill in your email address at the top right of this website.

Disclosure of previous expert reports where a party seeks to change experts within the same field

Beck v Ministry of Defence [2003] EWCA Civ 1043
Where a Defendant seeks to change experts in the same field, generally a condition of the court allowing them permission to do so is disclosure of the previous expert's report once the permission for a new expert has been granted.

Nicos Varnavas Hajigeorgiou v Vassos Michael Vasiliou [2005] EWCA Civ 236
The court does not have the power under CPR 35.4 to direct whether parties can instruct experts, but to direct whether parties may call experts at trial. Where a direction gave the parties permission to 'instruct one expert each' in a particular field, the direction was in fact that each party may rely on one expert at trial. Additionally, if a party in this scenario had instructed an expert before the direction was given, but subsequently chose not to rely on that expert so instructed a second expert and chose to rely upon that second expert instead, they did not need further permission from the court.

Ricky Edwards-Tubb v J D Wetherspoon Plc [2011] EWCA Civ 136
The power for a court to impose a condition of disclosure of an earlier expert report when granting permission to change experts is available where the change of expert occurs pre-issue as well as when it occurs post-issue. It is a matter of discretion, but the power should usually be exercised where the change comes after the parties have embarked upon the pre-action protocol and engaged in the process of the claim with each other. However, where a party has taken advice pre-protocol at his own expense there is generally no justification for infringing his privilege in the absence of an unusual factor.

Odera (1) Ordera (2) v Ball (1) Ball (2) [2012] EWHC 1790 (TCC)

A party that had prepared an additional expert report at the same time as a court-ordered expert report was not required to disclose the additional report under CPR 35.4 as the report had been prepared on a misunderstanding of the issues, and it was potentially unjust to provide privileged reports prepared on such a misunderstanding.

James Henry, Temple Garden Chambers

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