Disclosure of Expert Reports in England & Wales and Ireland

Disclosure of Expert Reports in England & Wales and Ireland: Doctrinal Foundations, Contemporary Challenges, and Prospects for Reform

1  Introduction

The disclosure of expert reports lies at the heart of modern civil case-management. It serves the twin aims of procedural economy and substantive fairness by ensuring that parties “play with their cards face-up on the table” while equipping the court with balanced, scientifically sound assistance. Yet across the United Kingdom and Ireland, judges continue to grapple with difficult questions concerning timing, scope, privilege, tactical behaviour, and equality of arms. This article undertakes a comparative doctrinal analysis of the relevant procedural regimes, drawing upon leading appellate authority—including Vernon v Bosley, Daniels v Walker, Lucas v Barking, and the Irish trilogy of Harrington, Power and O’Flynn—in order to distil guiding principles and identify areas ripe for reform.

2  Procedural Frameworks

2.1  England & Wales

Since the Woolf reforms, disclosure is governed primarily by Part 35 of the Civil Procedure Rules (“CPR”). CPR 35.4 mandates court permission before any expert may be called; CPR 35.10 requires transparency as to “instructions” underpinning the report, and CPR 35.13 precludes reliance on undisclosed expert material. The ethos is encapsulated in Lucas v Barking, where the Court of Appeal emphasised the “imperative of transparency” in expert evidence[1]. Earlier decisions such as Vernon v Bosley—decided under the former RSC, Order 25, rule 8—foreshadowed this policy by insisting upon exchange of reports as a condition precedent to calling the witness[2].

2.2  Ireland

Ireland’s regime derives from Order 39, rule 46 of the Rules of the Superior Courts 1986 (inserted by S.I. 391/1998 pursuant to s.45 Courts and Court Offices Act 1995). The rule obliges each party in a personal-injuries action to (i) furnish a schedule of experts intended to be called and (ii) exchange the listed reports. Unlike the CPR, the Irish provision is self-executing: disclosure occurs without court order. However, the rule’s rigidity has generated disputes regarding sequencing and confidentiality, culminating in case law such as Harrington v Cork City Council and O’Flynn v HSE[3].

3  Key Doctrinal Issues

3.1  Timing and Simultaneity

English practice, assisted by active judicial case-management, generally promotes simultaneous exchange through directions tailored under CPR 35. In Ireland, Order 39, r 46 envisages contemporaneous exchange but does not expressly outlaw sequential disclosure. The resulting tactical asymmetry was exposed in Harrington, where the plaintiff refused to serve reports absent an undertaking that the defendant would not “front-load” its own expert retainer with knowledge of the plaintiff’s case. Kearns P. fashioned the now-familiar “Harrington undertaking” to preserve fairness[4]. The Court of Appeal in O’Flynn has clarified that such undertakings cannot be imposed on an unwilling party, but may be required where non-simultaneous exchange risks injustice[5].

3.2  Scope of Disclosure: What Constitutes an “Expert Report”?

In Power v Tesco Ireland the High Court stressed that only reports from experts who “will be called” fall within r 46; materials from abandoned experts remain privileged[6]. The English position is analogous: CPR 35.13 reinforces privilege over unused reports, but the court may impose conditions when “expert shopping” is suspected. This conditional disclosure jurisdiction was applied in BMG (Mansfield) Ltd v Galliford Try, where Edwards-Stuart J. declined to compel production because the appearance of expert shopping was “faint”[7].

3.3  Privilege, Drafts and Instructions

Whether earlier drafts and solicitor attendance notes are disclosable remains contentious. The Court of Appeal in Jackson v Marley Davenport held that CPR 35.13 does not confer power to order disclosure of privileged drafts[8]. Nevertheless, Lucas v Barking construed “instructions” broadly, compelling disclosure of factual material supplied to the expert to ensure the report’s foundation is “patent”[1]. Irish courts have echoed this approach: in McLeish v Lothian NHS Board (Scottish authority persuasive in Ireland) and in O’Flynn, failure to lodge an updated report was treated as a breach of fair-notice obligations.

3.4  Expert Shopping and Conditional Leave to Adduce Evidence

The spectre of tactical replacement of unfavourable experts was addressed robustly in Daniels v Walker. Lord Woolf MR accepted that additional expert evidence may be justified where joint reports prove inadequate, but cautioned that the court’s leave will be conditioned to prevent abuse[9]. Post-CPR, courts frequently attach a “disclose or abandon” condition when granting permission to instruct a new expert (BMG; Dunn Motor Traction). The Irish jurisprudence is less developed; however, s.2 Civil Liability and Courts Act 2004 (definition of “expert evidence”) provides statutory latitude for evolving disciplines, potentially widening the pool for shopping concerns.

3.5  Continuing Duties and Late Evidence

Both jurisdictions impose an ongoing obligation to update disclosures. In Toth v Jarman the English Court of Appeal confirmed that late expert evidence may be excluded where it would derail the timetable absent good reason[10]. Similarly, Irish courts have struck out or limited late evidence that subverts procedural equality, as illustrated in Payne v Shovlin where non-disclosure of supplementary letters was criticised[11].

4  Analytical Synthesis

4.1  Convergence on Transparency

A common thread across the jurisprudence is judicial insistence on transparency. Whether through CPR 35 or Order 39, r 46, courts aim to eradicate trial by ambush, curb spiralling costs, and promote early settlement. The doctrinal tension lies in reconciling transparency with legal professional privilege and the legitimate need for parties to refine their cases.

4.2  Divergence in Mechanistic Detail

England & Wales operates a case-management model in which the court actively sequences exchange and polices privilege through discretionary orders. Ireland, by contrast, relies on a rules-based model that presumes simultaneous compliance absent judicial intervention. The Harrington and O’Flynn litigation demonstrates that rigidity can itself foster inequity, necessitating ad hoc undertakings or equitable adjustments. A statutory recalibration—mooted by the Court of Appeal in O’Flynn—appears imminent.

4.3  The Role of Expert Independence

Underlying many disclosure disputes is the court’s desire to promote expert independence. As Lord Woolf observed in his Access to Justice Final Report, experts should assist the court rather than act as partisan advocates[12]. Extensive disclosure, including of instructions, is conceived as a prophylactic against partisanship, enabling cross-examination on potential bias or selective quotation.

5  Recommendations for Reform

  • Codify Simultaneous Exchange in Ireland. Statutory amendment should mandate simultaneous service of expert reports save where the court orders otherwise, obviating the need for Harrington undertakings.
  • Clarify Privilege over Drafts. Both jurisdictions would benefit from explicit rules confirming the privileged status of earlier drafts while preserving the court’s power to order disclosure where justice so requires (e.g., strong evidence of expert shopping).
  • Introduce a Duty to Notify of Material Changes. Borrowing from CPR 35.10(4), Irish rules should impose an express obligation to promptly disclose any material alteration of expert opinion.
  • Guidance on “Expert Shopping”. A Practice Direction could enumerate factors triggering conditional disclosure (chronology of instructions, unexplained withdrawal, etc.), thereby promoting predictability.

6  Conclusion

Disclosure of expert reports remains a dynamic field at the intersection of procedural efficiency, substantive justice, and professional ethics. The comparative analysis reveals substantial convergence in underlying principles but notable divergence in procedural mechanics. By adopting calibrated reforms—particularly around simultaneity, privilege, and policing of expert shopping—both England & Wales and Ireland can further the overarching objective of securing a fair, efficient, and transparent civil justice system.

Footnotes

  1. Lucas v Barking, Havering & Redbridge Hospitals NHS Trust [2004] 1 WLR 220 (CA).
  2. Vernon v Bosley (No 1) [1997] 1 All ER 577 (CA); RSC Order 25, r 8 (now superseded).
  3. Harrington v Cork City Council [2015] IEHC 41; O’Flynn v HSE [2022] IECA (unrep.).
  4. Harrington v Cork City Council [2015] IEHC 41 at §§4–6.
  5. O’Flynn v HSE [2022] IECA, §§46–47, 80–81.
  6. Power v Tesco Ireland Ltd [2016] IEHC (unrep.).
  7. BMG (Mansfield) Ltd v Galliford Try Construction Ltd [2013] EWHC 3183 (TCC) at §§29–38.
  8. Jackson v Marley Davenport Ltd [2004] 1 WLR 2926 (CA).
  9. Daniels v Walker [2000] CPLR 462 (CA).
  10. Toth v Jarman [2006] EWCA Civ 1028; [2006] 4 All ER 1276.
  11. Payne v Shovlin [2004] IEHC (unrep.) and [2006] IESC.
  12. Lord Woolf, Access to Justice – Final Report (1996), Ch. 13 §5.