KB-2023-000278 - [2025] EWHC 2536 (KB)

With respect to the Claimant’s application pursuant to CPR 31.14(1), the Defendant no longer seeks to rely on the first AD containing reference to the draft report. The Defendant has served a further draft Amended Defence that has removed that paragraph. As such, there is no pleading before the Court that quotes from the draft report, no permission having been given for first AD to be relied upon. The test under CPR 31.14(1) is not met and thus this element of the Claimant’s application fails.

The position with respect to CPR 31.14(2) is not so straightforward. Dr Jarman has referred to Dr Mullin’s draft report. As such, CPR 31.14(2) gives the Court a power to order production and inspection of such a document. That power is subject to the provisions of CPR 35.10, and I am also bound by the decision in Lucas.

The decision in Lucas is clear that an opposing party is not entitled to inspection of a draft expert report even where that draft has been referred to in the served reports of the same expert, or another expert, subject to compliance with CPR 35.10(3). Whilst that might seem an unsatisfactory outcome on first blush, there are policy reasons for that approach, as were articulated in Lucas.

Ms Ashworth submits that in Lucas it was held that privilege to a document referred to in the expert’s report was not waived, however this was subject to the statement of instructions being inaccurate or incomplete. Ms Ashworth argues that Lucas is therefore to be distinguished“as in that case there was no basis to suggest that the “material instructions” are in any way inaccurate in either report”. I reject the submission that Lucas should be distinguished in this case and do not agree with Ms Ashworth’s summary of the ratio of Lucas for the reasons set out above.

The difficulty I have in the present case is that I have no witness evidence from the Defendant as to the circumstances of the creation of the draft report and how it came to be provided to Dr Jarman. All I have is an email from the Defendant’s Solicitor to the Claimant’s Solicitor’s request for inspection, which asserts that the draft report was in draft form and was subject to privilege. Given my knowledge and experience of such cases, I consider that I can safely conclude that it is highly likely that Dr Jarman was provided with the draft (August 2024) version of Dr Mullin’s report and that the draft report was provided as part of the instructions to Dr Jarman to prepare his report. I reach that view because the report is listed in Dr Jarman’s report list of documents available to him to prepare his report, as set out in the paragraph of his report detailing his instructions.

I therefore must determine whether CPR 35.10(3) has been complied with. I am satisfied that it has. Dr Jarman has listed Dr Mullin’s report, albeit undated, at the start of his report. In the body of his report, he has stated that he had been sent a copy of Dr Mullin’s August 2024 report, along with a summary of Dr Mullin’s conclusions within that report. Dr Jarman has therefore set out the substance of all material instructions. Indeed, not only has he set those instructions out, but he has also gone on to reach a contrary view. That indicates that Dr Jarman is complying with his duties under Part 35; he has set out the material instructions that he received and has then reached a contrary view. The witness statement in support of the Claimant’s application seems to fundamentally misunderstand CPR 35.10 given the repeated reference to the adequacy of the Defendant’s instructions to Dr Jarman rather than Dr Jarman’s setting out of the substance of his material instructions.

In terms of CPR 35.10(4), the court will not, in relation to instructions to an expert, order disclosure of any specific document unless it is satisfied that there are reasonable grounds to consider the statement of instructions given pursuant to CPR 35.10(3) to be inaccurate or incomplete. There are no grounds, let alone reasonable grounds, for me to conclude that Dr Jarman’s statement of instructions is inaccurate or incomplete. On the contrary, I am reassured that Dr Jarman has taken steps to identify elements of another expert’s report that ultimately goes against the conclusion he reaches. It seems to me that this is a sign of an expert taking care to consider the material before them and reassures me that, was there anything else of substance in the draft report upon which Dr Jarman relied or impacted upon his opinions, he would have referred to them. This is part of the Part 35’s expert’s duties to the Court and the Court has to place faith in the expert that they will fulfil those duties, as enunciated by Laws LJ in Lucas.

It is not clear how it is that Dr Mullin came to change his position/opinion regarding the number of performance validity tests/trials the Claimant failed. However, it is his opinion within his served report that the Claimant did not fail such testing. That is the evidence that is now before the Court, the evidence advanced by Dr Mullin and the evidence relied upon by the Defendant. His previous opinion and/or analysis of the performance validity testing is not before the Court and is not relied upon or deployed by the Defendant. Dr Jarman does not seemingly rely on Dr Mullin’s findings to reach or underpin his own conclusions on any issue; this case can therefore be distinguished to that extent from Pickett.

I reject the Claimant’s contention that the Defendant’s other experts will have relied on Dr Jarman’s summary of his reading of the draft report and that gives a reason to order inspection of the draft report. Drs Neal and Edwards explicitly refer to having sight of Dr Mullin’s December 2024 report. I was not taken to any passage to suggest they had either been sent, or relied upon, the draft report or Dr Jarman’s summary of the same.

As for the reduction of the report by 68 pages, there is little if any evidence that those 68 pages contained inaccurate opinion, let alone “reasonable grounds” for me to make such a finding as averred by Ms Ashworth. I would find it surprising if 68 pages of analysis had been cut from an expert report. In any event, any preliminary opinion reached by Dr Mullin in his draft report is just that, preliminary. If it is not in his served report, it is not opinion that is before the Court, and the Defendant cannot place reliance on it. I have not been taken to any examples of any of the Defendant’s experts relying on anything within the draft report to ground their own opinions or conclusions.

Even if I were to be wrong about whether Dr Jarman has complied with the requirements of CPR 35.10(3), I would still exercise my discretion against ordering inspection of the draft report, in reliance on what is said in both Lucas and Jackson regarding the status of draft expert reports. Additionally, the draft report is not used by Dr Jarman as a springboard for his own conclusions. The Defendant does not seek (or no longer seeks) to deploy the contents or conclusions of the draft report in this case. Permitting inspection of draft reports in these circumstances would risk opening the type of satellite litigation that Waller LJ was seemingly eager to avoid in Lucas.

Furthermore, if I am wrong in my analysis that the draft report formed part of the instructions to Dr Jarman, I would not consider that privilege in that report had been waived given the lack of deployment of the draft report and the lack of reliance placed upon it by the Defendant and Dr Jarman.

For all the above reasons, I refuse the Claimant’s application for specific disclosure of, and production for the inspection of, Dr Mullin’s draft report, dated August 2024.

I explicitly do not decide whether the Claimant should be entitled to question Dr Mullin on his change of opinion; that will be a matter for the trial judge.