Expert Report Disclosable, Says Court of Appeal

Posted: 14th June 2011

Sometimes, people tell you things you don’t want to hear. When the person doing the telling is an expert witness you have instructed, problems can result.

In court proceedings in which an expert witness report is needed, unless a ‘single joint expert‘ is appointed, each party to the dispute will appoint its own expert. In practice, this is normally organised by the solicitor, who informs the other parties to the dispute who the expert will be.
Although it may seem perverse, when an expert witness is instructed by the firm representing you, the witness is not ‘your witness’ because the expert owes a duty to the court to prepare a report that is fair and free of bias.
Accordingly, it is by no means unusual for the expert’s report to come as something of a disappointment. When this occurs, there is something of a dilemma.
Until the expert’s report is used in proceedings, it is a legally privileged document and the ‘other side’ cannot demand it is disclosed. Accordingly, one option is simply not to disclose the report.
Another option is to obtain a second report in the hope that it will be more to one’s liking. However, the problem with this approach, as confirmed by a recent case in the Court of Appeal, is that once the decision is made to use the second report and it is disclosed, the Court can order the disclosure of the first report.
The appointment and use of experts is a matter requiring considerable knowledge and experience. We can assist you in the effective pursuit of any legal claim or litigation.