TCC rules on experts, privilege and undisclosed reports
David Platt KC appeared for insurers in Odedra v Ball [2012] EWHC 1790 (TCC), where the Defendants sought disclosure of an additional expert report which had been prepared by a valuer on separate instructions in a pollution claim but not disclosed. Judgment was handed down by Coulson J in the TCC on 4 July 2012.
The Claimants’ expert valuer had prepared two reports in a claim for damages following the contamination of a domestic property by heating oil. The Claimants sought damages arising from the loss of a sale to a third party. One report from the valuer was disclosed, and the Claimants sought to rely on it. A second report was not disclosed but it was common ground that it had been prepared.
Coulson J in the TCC declined to order the disclosure of the undisclosed report, but required the Claimants to adduce additional evidence if they wished to pursue the part of their case where this evidence would have been relevant.
The Defendants had sought an order that the undisclosed report be disclosed as a condition of relying on any expert evidence. The Claimants stated that they did not intend to rely on the undisclosed report, which had become irrelevant given that their primary case was “total loss” and not diminution in value. The Defendants asserted that the undisclosed report had been properly prepared, but the disclosed one contained no expert evidence and had been put in to permit the Claimants to pursue the “total loss” case irrespective of their expert’s view of that argument and thereby manipulate the expert evidence process.
The Defendants relied on the following decisions:
- Vasiliou v Hajigeorgiou [2005] EWCA Civ 236 (disclosure of first report a condition of obtaining permission to rely on a second)
- Edwards-Tubb v JD Wetherspoon Plc [2011] EWCA Civ 136 (disclosure of pre-action report as a condition of being allowed to rely on the subsequent report)
There was no authority on the status of an undisclosed expert’s report prepared simultaneously with a report by the same expert which had been disclosed. The judge stated that the requirement for openness could on occasion would “trump” privilege – but equally in some cases that approach might be unjust. In the instant case, disclosure of the undisclosed report was refused because, in the event, there was an issue over whether the Claimants required such evidence for their primary case. If they chose to pursue their secondary case, then that would require additional valuation evidence, which would need to adduced accordingly and in due course.
Furthermore both parties’ experts had become “slightly confused” as a result of the way in which the case had been put, and it would be wrong and potentially unjust to require the disclosure of reports based on misunderstood issues.
