Editing the experts

Until now, it was generally believed that any written communication from an expert was sacrosanct and could not be altered without risking severe condemnation from the court. Both defendants and claimants thought they were obliged to disclose it - warts and all - if they wanted to rely on the expert in litigation.

It now seems, however, that this was a mistaken belief. The expert's report you receive need not be the one that is disclosed; it can be altered, and even shaped to your cause, before disclosure - provided your expert agrees, of course - without the court even raising an eyebrow if it finds out.

This is the result of the Court of Appeal's recent judgement in Jackson v Marley Davenport on 9 September. The claimant's solicitors admitted they had asked their expert to produce a draft of his report to be discussed at a conference with counsel. However, this was not the report eventually disclosed. There was no evidence that the report had been tampered with inappropriately, but it appeared that the expert had changed his mind following the conference. Sadly, the court would not let the defendant see the earlier report - it was privileged.

While privilege is an important right, many thought that the intention of the Woolf reforms was to detach experts from those instructing them.

In this way, any document they produced would have to be disclosed, or the expert could not be used. Unfortunately, the court did not address these matters. The earlier report was privileged, and that was the end of it.

What implications does the Jackson decision hold? At best, it frees a party's hand, claimant and defendant alike, in presenting expert evidence; at worst it is an open invitation to abuse of expert evidence.

When can you redraft?

Of course, evidence from a joint expert is different, as both sides see the report at the same time. The following points of clarification only concern cases where a party is able to obtain its own expert.

What if the expert has made a simple mistake of fact? It has always been the case that you can ask the expert to amend his report and only disclose the amended report.

What if an expert changes his mind before disclosure? He may, for example, be given more information. In this situation, an expert can be asked to amend his report and only disclose the amended report. The other side will probably never know that the expert's mind has changed, or what made him change his mind. What if you ask your expert some further questions, following his undisclosed report? Again, you can ask the expert to amend his report to incorporate the answers in text and only disclose the amended report.

What if you don't like the way the expert's views are expressed? After Jackson, it seems that you can rewrite the report for him, putting the appropriate spin upon it. So long as the opinion itself is unchanged, and the expert is prepared to accept the redraft as a legitimate expression of that opinion, you can disclose the redraft.

But what if you don't like part of the opinion? Jackson doesn't allow you to ask the expert to remove the offending parts, simply disclosing the altered version as if it were the only report.

However, if this were to be done, Jackson now makes it very difficult for those on the other side to find out that it has happened. The only way they would discover it is through a lucky question - written or in cross-examination - or if it were obvious. Even then, the expert who was prepared to remove such parts will no doubt have his reply vetted before disclosing.

What about the 'bad old days', when experts would often produce a favourable report for disclosure, with a covering letter (which would not be disclosed) giving all the bad bits? Jackson does not allow this and the Civil Procedure Rules forbid it. The expert has a duty to the court. However, some experts were prepared to do this before the Woolf reforms and there is little more, if anything, to stop them doing this now. Again, post-Jackson, it will be very hard for the other side to find out this has happened.

Finally, what if you ask your expert some questions following disclosure of his report, but you don't like the answers? The reply is privileged.

You ought to disclose it, but the other side may never know if you decide not to. Alternatively, you may seek to refine the answers, before disclosure.

The court in Jackson indicated that its conclusion may have been different if it was clear that the disclosed report was incomplete - rather than finding out about the earlier report by chance. A case like this would probably lead merely to a supplemental report to fill the gap - which could also be polished before disclosure.

What does it mean?

Jackson provides some welcome clarity to the position of an expert report, albeit inferred from a very short judgement. As long as the expert's views are not altered, any disclosed report can be discussed, amended and rewritten by the expert or the lawyers before disclosure. We can all ensure, within this limit, that the report is the one we want to disclose, not necessarily the one we are given.

However, the negative implication is that those who wish to abuse the system can now do so with much less concern that they will be found out.

The checks on such abuse are very weak indeed.