EWCA Civ 1102
The disclosure of documents under the CPR
This was a procedural point within a personal injury claim. The defendant hospital had sought an order that the claimant disclose various documents (a previous expert report and a witness statement) supplied to his expert witness as part of his instructions. By CPR Part 35.10(3) an expert report should state the substance of all material instructions, whether written or oral, that formed the basis of the report. By 35.10(4) however, specific documents shall not be ordered to be disclosed, unless there are grounds to consider that the statement under 35.10(3) to be inaccurate or incomplete.
Whether the Order granted by the Master to grant disclosure of the various documents complied with CPR Part 35; were the documents part of the instructions, and therefore non-disclosable under 35.10(4)?
CPR Part 35.10(3) required a full statement of the basis on which instructions were given. 35.10(4) operated to prevent all of the material given to an expert thereby becoming disclosable. There was no requirement to set out all the information contained in the statement of instructions or all the material supplied to the expert. There was no suggestion that this expert’s 35.10(3) statement was inaccurate or incomplete, and thus the documents in question formed part of the instructions, and were not disclosable, by virtue of 35.1(4). The order was refused.
A decision upholding the ruling of the Master would have effectively meant that every document had to be disclosed. As the appeal court held what is required is a full statement not all the material. However, it may be considered that when the expert report itself refers to specific documents beyond the letter of instruction (in this case a previous expert report and a witness statement), those documents should indeed be disclosed in order to enable the other side properly to consider the report. The alternative is the expert witness exercising his own judgment as to which parts of those documents are material for inclusion in his report and perhaps paraphrasing them in the process. Whilst decisions of this kind turn on their own facts, this precedent is unfortunate in its scope in reducing transparency in not finding a middle course between total disclosure (which is not provided for in Part 35) and withholding of apparently relevant documents outside the letter of instruction and relied on by the expert witness.