CPR do not alter previous rules

Jackson v Marley Davenport (Court of Appeal - 9 September 2004) The claimant, who was employed by t...

Jackson v Marley Davenport (Court of Appeal - 9 September 2004)

The claimant, who was employed by the defendant, was injured during a fall at work. He issued proceedings and obtained an expert report for the purposes of a conference with his lawyers.

The expert proceeded to draft a further report and it was this report that was served on the defendant's solicitors. The second, and final, report referred to two letters of instruction and gave the defendant's solicitors the impression that, having received additional information, the expert had changed his opinion and might have originally expressed a different view. The defendant sought disclosure of the first report.

The Court of Appeal held that the Civil Procedure Rules did not provide courts with the power to order the disclosure of earlier reports made by experts in advance of a final report. Where an expert made a report for legal advisers or for the purposes of a conference, such a report was subject to litigation privilege.

While the CPR had removed privilege from letters of instruction to experts, they did not alter the previous rules of privilege in any other respect.

The defendant's appeal was accordingly dismissed.

COMMENT: The Court of Appeal has helpfully clarified that it was not the intention of the Civil Procedure Rules relating to disclosure of expert evidence that the privilege in any earlier reports could be overridden. Rachel Simpson, BLM London

- These law reports are contributed by insurance law firm Berrymans Lace Mawer (http://www.blm-law.com).

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