Wednesday, 30 May 2012

The Important of getting a good Expert
The  recent case of Edwards-Tubb v JD Wetherspoon, makes the necessity of obtaining good quality medical evidence at the outset of your claim clear.
The Court of Appeal held that the court could not override privilege (privilege protects communications between a solicitor and their client  In order for legal privilege to be maintained, the information must remain confidential ), but could and would normally require waiver of the privilege as a condition of granting permission to obtain evidence from a different expert.
There are three Key points as follows:

It makes no difference whether the change of expert occurred before or after proceedings were issued. In either case, a party will normally be required to give their opponent  an earlier report in order to maximise the information available to the court and to discourage "expert shopping".This is why it is so important to get the right expert at the beginning of a case, IF YOU HAVE A POORLY WRITTEN REPORT, THAT IS THE REPORT YOU WILL BE EXPECTED TO RELY UPON.
As a litigant in person if you instruct an expert at your own expense, rather than prepare a report for the purposes of the proceedings, the court will not normally require privilege to be waived in the report.
If a party can serve the new expert's report within the confines of an existing permission, it seems the court cannot require disclosure of the earlier report.
Practical implications are as follows
If you want to  maintain flexibility so that you can  instruct a different expert if necessary, it is better to seek permission to serve expert evidence based on a particular discipline (i.e a psychologist) rather than a named expert. It may also be advisable for you to avoid naming a chosen expert for as long as possible, if this can be done in accordance  with any applicable pre-action protocol.

This judgment highlights the importance of your testing a potential expert's views  before a decision is taken to instruct him or her for the purpose of the proceedings.  In other words you need to speak to the expert and ask questions because you need to know that he will be able to stand up in court and not crumble under cross examination.

You may also want to consider  instructing a potential expert as an advisory expert only until it is clear that he or she will be able to support the case.  

If the Defendant's or Plaintiff's legal representative suspects that an opponent is shopping around for a favourable expert, they may wish to consider asking whether the opponent has obtained any reports from any other experts, or they may seek to persuade the court to grant permission for expert evidence only on condition that any prior reports be disclosed.

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