Waiver of privilege in draft expert’s report

19-12-2011 09:06

In ACD (Landscape Architects) Ltd v Overall & Anor [2011] EWHC 3362 (TCC) (15 December 2011) the defendants (“Overall”) were faced with an application by the Claimant (“ACD”) to strike out Overall’s counterclaim in respect of ACD’s alleged professional negligence.

That application was in part based on Overall’s failure to procure an expert report that supported its counterclaim in professional negligence against ACD. As Mr Justice Coulson said in Pantelli Associates Ltd v Corporate City Developments Number Two Ltd [2010] EWHC 3189 (TCC):

“...it is standard practice that, where an allegation of professional negligence is to be pleaded, that allegation must be supported (in writing) by a relevant professional with the necessary expertise.”

ACD’s strike out application was made on 13 October 2011 and due to be heard on 9 December 2011. From 2 December 2011 to 6 December 2011 Overall filed lengthy witness statements and an application to amend its defence and counterclaim. One of those witness statements referred to (and appeared to set out extracts from) a draft expert report procured by Overall. Overall sought not to waive privilege in that draft report but suggested that its professional negligence claim should not be struck out due to the content of that draft report.

ACD applied for an adjournment of the hearing to consider the late evidence adduced by Overall and for disclosure of the draft expert report to which Overall’s witness statement referred.

Mr Justice Akenhead was critical of Overall’s failure to produce this evidence until so close to the hearing date and adjourned the hearing of ACD’s strike out application.

As to ACD’s application for disclosure of the draft expert report, Mr Justice Akenhead held that in circumstances where documents are referred to in a party’s witness statement the following matters should be considered where an application for disclosure is made:

“(a) Unless there is a good reason otherwise, documents referred to in a witness statement submitted to be used in interlocutory or final court hearings must be disclosed by the party submitting the statement.

(b) One good reason is that the documents are privileged.

(c) Privilege will be waived where the otherwise privileged document is actually or effectively referred to in a witness statement and or part of its contents are deployed for use actually or potentially in the interlocutory proceedings or in the final trial, as the case may be.

(d) A party which deploys part of the privileged document in a witness statement will, at least as a matter of general principle, be required to disclose the whole of the document because it is not just to allow a party by way of cherry picking to rely only on that part.

(e) The test of whether a document or part of it is being deployed is whether the contents of the document are being relied upon rather than the effect or impact of the document.

(f) Once having referred to the document or part of it in a witness statement, generally at least the Court will presume that it is relevant, because the very fact that it is referred to in the statement demonstrates its relevance.”

In this case Mr Justice Akenhead concluded that privilege was waived by Overall in relation to the draft report of its expert and ordered its disclosure.

If you would like any further information on this subject, please contact Philip Vickers.

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