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

CPR r. 31.14(1) states as follows:

“(1)

A party may inspect a document mentioned in—

(a)

a statement of case;

(b)

a witness statement;

(c)

a witness summary; or

(d)

an affidavit.”

“(2)

Subject to rule 35.10(4), a party may apply for an order for inspection of any document mentioned in an expert’s report which has not already been disclosed in the proceedings. (Rule 35.10(4) makes provision in relation to instructions referred to in an expert’s report).”

CPR 35.10 states:

“(1)

An expert’s report must comply with the requirements set out in Practice Direction 35.

(2)

At the end of an expert’s report there must be a statement that the expert understands and has complied with their duty to the court.

(3)

The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.

(4)

The instructions referred to in paragraph (3) shall not be privileged against disclosure but the court will not, in relation to those instructions— (a) order disclosure of any specific document; or (b) permit any questioning in court, other than by the party who instructed the expert, unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete.” (My emphasis)

I was referred to three specific cases that deal with the issue of privilege, disclosure and inspection in relation to draft expert reports, which I will consider briefly in turn.

In Lucas v Barking, Havering and Redbridge Hospital NHS Trust [2004] 1 WLR 220, Waller LJ considered the position both pre- and post-the introduction of the CPR. That case concerned a party seeking disclosure of a draft witness statement and the draft report of an expert referred to in another expert’s served report. Waller LJ considered whether the statement and draft report formed part of the instructions to the second expert. He went on to consider the interplay between CPR 35.10(3) and (4), stating that:

“30.

Mr Donovan suggests that CPR 35.10(4) is intended to reach a reasonable compromise so far as material supplied to experts is concerned. The rules require a full setting out of the facts; that would have waived privilege; the loss of privilege is confirmed by 35.10(4) but the court will not make an order for disclosure unless “it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete.” That he submits supports a wide construction of the word “instructions” to include the information being supplied by the claimant and all the material which a solicitor places in front of the expert in order to gain advice.

31.

In my view Mr Donovan’s submissions are to be preferred. It seems to me that CPR 35.10(4) is designed primarily to give protection to a party who would otherwise have waived privilege by being compelled to set out matters in an expert’s report. It is also designed so far as possible to prevent lengthy arguments as to whether there has been a waiver of privilege either prior to the trial or indeed at trial leading to an entitlement to further disclosure.

32.

In this case there is no difficulty in relation to the statement of Mr Lucas. That statement was supplied to the expert as part of the instructions to the expert. Substantial parts had been set out as “material instructions” pursuant to CPR 35.10(3). The very purpose as it seems to me of CPR 35.10.(4) is to prevent compliance with CPR 35.10(3) rendering such a statement disclosable unless there are grounds for believing that the statement of instructions given in the expert’s report is “inaccurate or incomplete”.

33.

So far as Dr Durdey’s previous report is concerned I see no reason why a similar approach should not render that document part of the instructions given to Dr Mason. That report was clearly given to her for a purpose and the purpose must have been to instruct her about what it was that the expert had been saying about Mr Lucas’ condition. It is no abuse of language thus as it seems to me to describe the provision of that report as part of the instructions to Dr Mason.

34.

It follows that I disagree with the decision of Morland J in Taylor and would hold that that should no longer be considered authoritative in this area. Material supplied by the instructing party to the expert as the basis on which the expert is being asked to advise should in my view be considered as part of the instructions and thus subject to CPR 35.10(4)…

36….The obligation under CPR 35.10(3) is to disclose the substance of all material instructions. The protection under CPR 35.10(4) relates to “any specific document” and “questioning in court” unless the statement of instructions given under paragraph (3) is inaccurate or incomplete. There is no requirement to set out all the information contained in the statement or all the material that has been supplied to an expert. The only obligation on the expert is to set out “material instructions”” (Original emphasis).

Laws LJ, whilst agreeing with Waller LJ’s conclusions, added a few percipient words of his own, including at [43]:

“There is a plain impact on the scope of legal professional privilege, and thus a degree of protection against the loss of privilege is given by the restrictions on disclosure provided for by 35.10(4). I think it a premise of the arrangements constituted by 35.10(3) and (4) that in the ordinary way the expert is to be trusted to comply with 35.10(3): the effect of the 35.10(4) restrictions is that the party on the other side may not as a matter of course call for disclosure of documents constituting the expert’s instructions as a check to see that 35.10(3) has been fulfilled. There must be some concrete fact giving rise to “reasonable grounds” within the closing words of 35.10(4). It is unsurprising that the expert is thus to be trusted; it is of a piece with his overriding duty to help the court (CPR 35.3). Overall, 35.10(4) in my view strikes an important balance between on the one hand the protection of the party whose privilege is lost, and on the other the vindication of 35.10(3) where there is a real question-mark as to its fulfilment.”

In Jackson v Marley Davenport Ltd [2004] EWCA Civ 1225; [2004] 1 WLR 2926, the Court of Appeal unanimously upheld the position that a draft expert report is privileged, subject to the provisions of CPR 35.10. Longmore LJ stated as follows:

“13.

There can be no doubt that, if an expert makes a report for the purpose of a party's legal advisers being able to give legal advice to their client, or for discussion in a conference of a party's legal advisers, such a report is the subject matter of litigation privilege at the time it is made. It has come into existence for the purposes of litigation. It is common for drafts of expert reports to be circulated among a party's advisers before a final report is prepared for exchange with other side. Such initial reports are privileged.

14.

I cannot believe that the Civil Procedure Rules were intended to override that privilege. CPR 35.5 provides that expert evidence is to be given in a report unless the court directs otherwise. CPR 35.10 then changed the previous law by providing in sub-rule (3) that the expert's report must state the substance of all material (whether written or oral instructions) on the basis on which the report was written. By sub-rule (4) it is, moreover, expressly provided that these instructions shall not be privileged. But the reference in Rule 35.10 to "the expert's report" is, and must be, a reference to the expert's intended evidence, not to earlier and privileged drafts of what may or may not in due course become the expert's evidence.

15.

The specific and limited exemption from privilege of the instructions given to the expert as the basis on which the report is to be written, shows, to my mind, that there cannot have been any intention in the minds of the draftsmen of the Civil Procedure Rules to abrogate the privilege attaching in other respects, eg to earlier drafts of a final report or to earlier reports whether said, in terms, to be draft reports or not.”

The more recent decision of Judge Matthews (sitting as a Judge of the High Court) in Pickett v Balkind [2022] EWHC 2226 (TCC); [2022] 4 WLR 88 considered the above authorities when dealing, inter alia, with an application for the inspection of a draft report not served in proceedings that an expert had subsequently relied upon as part of their opinion within the expert joint statement. The salient part of HHJ Matthews’ judgment is found at [99] to [100]:

“99.

Mr Crowley submitted that the earlier report was indeed privileged, and that that privilege had not been waived. He referred to the Court of Appeal’s decision in Jackson v Marley Davenport Ltd [2004] EWCA Civ 1225; [2004] 1 WLR 2926. There the court held that only reports intended to be relied on before the court at trial fell within the rule 35.10(4) regime. Other expert reports (including drafts of the final report) were subject to litigation privilege, as documents brought into existence for the purposes of the litigation. CPR Pt 35 did not override that privilege. I am of course bound by that decision. I would therefore have expected some evidence about the circumstances of the creation of the earlier report which would satisfy the test for privilege. As Ms Chalmers pointed out, however, I do not have any such information. Neither the claimant nor anyone on his behalf has given any evidence as to those circumstances. Accordingly, I cannot hold that the claim to privilege is justified. So, I should proceed simply to decide whether to order production under CPR r 31.14(2).

100.…I will consider the position as if the report were privileged. In these circumstances, the question would not be whether there are reasonable grounds to consider that Mr Pryce’s statement of his instructions were inaccurate or incomplete. Instead, it would be whether privilege in the earlier report had been waived. This in turn would depend on a combination of two matters. The first is whether the expert report of Mr Pryce merely refers to the earlier report (for example, as an event in the narrative) or whether it relies on (deploys) the content of that report. In the former case, the mere reference would not amount to any kind of deployment, and could not waive privilege. In the latter case, however, the content of the earlier report would be being deployed, and would in principle be capable of operating as a waiver of any privilege in that material. In the present case, I have no doubt that the position is indeed the latter rather than the former. Mr Pryce does not merely refer to the report, he sets out a particular conclusion in that earlier report as a basis for something that he himself says. He has relied on it to reach his own conclusion.”

I have referred myself to the commentary in Privilege (5^th Ed.), where the author states at paragraph 3-389:

“One area where the application of the CPR Pt 35 expert privilege rules can give rise to acute challenges is where the expert relies on his own or another’s earlier—and privileged—advisory report. It will be recalled that in Lucas the second expert was provided with the first report of her fellow expert and to which she made reference. As Lucas confirms, the effect of CPR r.35.10(4) is that, while privilege over such documents is lost where they form part of the Pt 35 expert’s instructions, they are only at risk of disclosure if CPR r.35.10(3) is not complied with: in other words, so long as the expert’s report sets out the substance of his material instructions, then even if, as in Lucas, the contents of the prior expert report is not referred to in the later report (presumably because it does not form part of the expert’s material instructions), it does not become discloseable [sic] under the r.35.10 regime.”

I derive the following principles from these authorities: