Bear in mind the possibility that expert advice obtained early in legal proceedings may become disclosable
This case concerned an interim application for disclosure of an undisclosed expert report in circumstances where an expert valuer had prepared two reports but only one had been disclosed.
Mr and Mrs Odedra (“O”) claimed damages for nuisance, negligence and/or under the doctrine of Rylands vs Fletcher as a result of the escape of heating oil from Mr and Mrs Ball’s (“B”) oil tank into O’s property in Heddington, near Wilshire.
In 2007 O put their property on the market and received an offer of £402,500 subject to contract. The offer was subsequently withdrawn on the basis that contamination from the oil leakage had not been fully remedied. Once remedial works had been completed the property had been put back on the market, but following the collapse in property prices had failed to sell.
As its primary claim O claimed the loss of the actual sale, alternatively the diminution in value.
The parties had been granted permission to call evidence from two experts, an expert environmental consultant and an expert valuer. Ultimately neither party chose to obtain expert evidence from an environmental consultant, however, both served expert reports from expert valuers.
O served a report from Mr Dutch. The report was brief at just a page and a half. It became apparent that Mr Dutch had also produced another report apparently considering the value of the property at various dates. The second report had not been disclosed and O’s solicitors advised that they did not intend disclosing it or relying on it at the hearing. O’s solicitors stated that the purpose of the second report was to assist them in considering the report they anticipated receiving from B’s expert. B served a report from Ms Loweth which gave an explanation for two valuation figures.
O submitted that Mr Dutch’s report was a proper expression of expert opinion. B argued that the parties’ solicitors had reached agreement as to the basis of the reports and that it appeared Mr Dutch had prepared the report (for which privilege was claimed) on that agreed basis, i.e. dealing with the valuation figures. Further, B’s solicitors asserted that the report that had been disclosed did not contain an expression of expert opinion.
1. Was expert evidence required to support O’s primary claim?
2. Was expert evidence required for the alternative way in which the claim was pleaded?
3. Should Mr Dutch’s other report be disclosed?
Mr Justice Coulson reached the view that the only potential evidence that may have been required to support O’s primary claim was whether the asking price of £402,500 was appropriate or reasonable as at May 2007. As this issue was no longer in dispute between the parties Mr Justice Coulson held that no other expert evidence was necessary to support the primary claim. Expert evidence would, however, be required to support the alternative claim in relation to the residual value of the property.
As to whether Mr Dutch’s other report should be disclosed, B’s solicitors relied on the court of appeal decision in Vasiliou v Hajigeorgiou , where Mr Justice Dyson emphasised that “if a party needs the permission of the court to rely on expert witness A in place of expert witness B, the court has the power to give permission on condition that A’s report is disclosed to the other party or parties, and that such condition will usually be imposed.” Further, B’s solicitors relied upon the decision in Edwards-Tubb v JD Wetherspoon PLC .
Mr Justice Coulson noted that there was no authority dealing with the status of an undisclosed report prepared by an expert at the same time as a report which had been disclosed. The authorities relied upon by B emphasised the importance of openness under the CPR and that in certain instances openness will trump questions of privilege.
However, Mr Jutice Coulson commented that there may be cases where requiring an expert to disclose everything that he produces, regardless of privilege, could give rise to injustice.
Ultimately, Mr Justice Coulson reached the decision that Mr Dutch was not required to disclose copies of his other report.
This case is a useful reminder of the issues to be borne in mind when obtaining expert evidence and the possibility that expert evidence obtained early on in the proceedings may become disclosable.
The decision in this case was linked closely to the fact that the Judge considered both experts to have become slightly confused as to what they should be doing. In these circumstances the Judge commented that it would be potentially unjust to require disclosure of a privileged report that may be based on a misunderstanding of the issues. The outcome of this application may have been very different had this not been the case.
Fenwick Elliott LLP