Lucas v Barking, Havering & Redbridge Hospitals NHS Trust

Factual and Procedural Background

This appeal concerns the interpretation and interaction of CPR 31.14(1) and (2) and CPR 35.10(3) and (4) in the context of disclosure of documents mentioned in expert reports and witness statements. The Plaintiff brought a personal injury claim alleging negligence by the Defendant. With the particulars of claim, the Plaintiff produced two expert reports, both referring to a witness statement of the Plaintiff and one also referring to a previous expert report. The Defendant sought an order for inspection of these documents under CPR 31.14(2), which the Plaintiff resisted, arguing that the documents formed part of the instructions to the experts and were protected under CPR 35.10(4). The Master granted the Defendant’s application for inspection, relying on a prior decision by Morland J in Taylor v Bolton Heath Health Authority, but granted permission to appeal. The matter was then brought to the appellate court for determination.

Legal Issues Presented

1. What is the proper construction of the term "instructions" in CPR 35.10(3) and (4) with respect to documents referred to in expert reports?
2. How do CPR 31.14(1) and (2) interact with CPR 35.10(3) and (4) in relation to the right to inspect documents mentioned in expert reports and witness statements?
3. Whether the Plaintiff’s witness statement and a previous expert report should be disclosed under CPR 31.14(2) and CPR 35.10(4).
4. What is the scope of legal professional privilege in the context of inspection rights under the CPR provisions cited?

Arguments of the Parties

Appellant's Arguments

• The term "instructions" should be narrowly construed as limited to what an expert is told to do, excluding the underlying material supplied to the expert.
• Documents such as witness statements or previous expert reports referred to in an expert’s report do not necessarily form part of the instructions and thus may be subject to inspection.
• Deployment of the contents of a privileged statement in expert evidence results in waiver of privilege over the entire statement, supporting inspection.

Appellee's Arguments

• A wide construction of "instructions" is appropriate, encompassing all material supplied to the expert, including witness statements and previous expert reports.
• CPR 35.10(4) is designed to protect parties from losing privilege by requiring full disclosure of material instructions in expert reports.
• Inspection should only be ordered if there are reasonable grounds to believe the statement of instructions in the expert report is inaccurate or incomplete.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed examination of the relevant CPR provisions and prior case law to determine the scope of the term "instructions" in CPR 35.10(3) and (4). It contrasted the narrow interpretation favored by Morland J in Taylor, which limited "instructions" to what the expert was told to do, excluding underlying factual or documentary material, with the broader view of Hart J in Morris, which included all material supplied to the expert.

The court analyzed the expert reports in the present case, noting that the reports included detailed references to witness statements, medical records, and prior expert reports as part of the material supplied to the experts. This supported a wider understanding of "instructions" to include such material.

Considering the purpose of CPR 35.10(4), the court concluded it was intended to protect parties from losing privilege by compelling disclosure of material instructions in expert reports, while balancing this against the need for transparency and the overriding objective of the CPR. The court emphasized that the expert is trusted to comply with the obligation to set out material instructions and that disclosure of documents forming part of those instructions should not be ordered unless there are reasonable grounds to believe the statement of instructions is inaccurate or incomplete.

The court rejected the notion that CPR 31.14(1)(a)-(d) confer an absolute right to inspect documents without regard to privilege, noting that such a construction would require express wording and would be inconsistent with established principles of privilege and public interest immunity.

Ultimately, the court preferred the broader construction of "instructions" advocated by the Appellee and found that the Plaintiff’s witness statement and prior expert report formed part of the instructions under CPR 35.10(4), thereby protecting them from disclosure absent a showing of inaccuracy or incompleteness in the expert’s statement of instructions.

The court further clarified that there was no evidence the expert reports in this case were inaccurate or incomplete in their statement of material instructions, and thus no basis existed to order disclosure at this stage.

Holding and Implications

The appeal was ALLOWED, and the order for disclosure of the Plaintiff’s witness statement and the prior expert report was refused.

The court held that documents supplied to an expert as the basis for their advice, including witness statements and previous expert reports, constitute "instructions" within the meaning of CPR 35.10(3) and (4) and are therefore protected from disclosure unless there are reasonable grounds to consider the expert’s statement of instructions inaccurate or incomplete.

This decision overrules the narrower approach previously taken in Taylor v Bolton Heath Health Authority and clarifies the interaction between CPR 31.14 and CPR 35.10, reinforcing the balance between transparency in expert evidence and protection of legal professional privilege. No new precedent beyond the parties is established, and the ruling directly affects inspection rights in similar civil procedure contexts.