Disclosure When Seeking to Rely on New Expert Evidence: Bowman v Thomson [2019] EWHC 269 (QB)

In an unreported judgment, a defendant has been unsuccessful in applying for specific disclosure of a medical report, produced by an expert formerly instructed by a claimant.

The application hearing formed part of clinical negligence proceedings, wherein the claimant alleged that the defendant had mismanaged his causa equina syndrome. Nevertheless, the court ruling has wider applications, e.g. in occupational disease claims.

Here, both parties sought court permission to rely on medical experts, pursuant to CPR 35.4; the claimant sought permission to rely on an expert in urology.

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Unbeknown to the defendant, this was not the first consultant urologist to be instructed by the claimant in the course of the proceedings.

Regardless, permission was granted and the claimant served the newly instructed expert’s reports on the defendant.

When the defendant became aware of the claimant’s original expert, however, he made a request for disclosure of the reports which caused the claimant to lose confidence in him and terminate his instruction.

The earlier expert’s involvement had been the provision of an ‘advisory only’ report, before proceedings were issued, and a supplementary report, after proceedings were issued (the post-issue report).

The claimant refused to disclose the earlier expert’s post-issue report, on the basis that it was privileged, but did disclose the ‘advisory report’, on a ‘without prejudice’ basis.

As a result, the defendant made an application, contending that the current claimant expert’s reports were only admissible on the pre-condition that the earlier expert’s post-issue report was also disclosed.

At 1st instance, the judge refused the defendant’s application, concluding that the court did not have discretion to impose conditions on the reliance of expert evidence where permission had already been given.

On appeal, the defendant submitted that the 1st instance judge had erred in applying the principles of ‘expert shopping’. Further, that it was within the judge’s case management powers to vary the original order by imposing an obligation to disclose the post-issue report.

Mr Justice Dingemans, who gave judgment at the High Court, found that there was no vehicle for the court to impose a condition on existing orders and, by consequence, the 1st instance judge had been right to refuse the defendant’s application.  

Abstracts of the Bowman judgment (without access to the full-text judgment) provide limited discussion, except to say that the leading case authorities on ‘expert shopping’ were followed.

Traditionally, it has been the view of the court that ‘expert shopping’ is undesirable and should be prevented using court powers, wherever possible [per Dyson LJ, in Vasiliou v Hajigeorgiou [2005] EWCA Civ 236]. It is difficult to imagine circumstances where it would be improper to compel disclosure of an earlier expert’s report [per Brown LJ in Beck v Ministry of Defence [2003] EWCA Civ 1043] and any condition should apply equally to experts substituted pre-issue and post-issue [per Hughes LJJ in Edwards-Tubb v JD Wetherspoon Plc [2011] EWCA Civ 136].

That being said, none of the authorities above had the effect of imposing conditions on existing CPR 35.4 orders.

Regarding the court’s powers of case management, since these were not addressed to the 1st instance judge, it was doubtful that the court would consider anything other than its hypothetical impact on appeal.

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Even though the court’s discretion to ‘vary or revoke’ an order under CPR 3.1(7) was wide, there had been no ‘mistake or misstatement’ in the original Order and it was not clear that the existence of a previously instructed expert constituted a ‘new circumstance’. In addition, the defendant had failed to confirm whether any other experts had been instructed by the claimant before the Order, permitting the parties to rely on their experts, was granted.