The defendant hospital had applied for an order for inspection under CPR 31.4(2) in respect of a witness statement and an earlier expert report referred to in expert reports produced for a personal injury claim. The appellant, Mr Lucas, resisted this application on the basis that the documents were excluded from disclosure by operation of CPR 35.10(4) as they formed part of the instructions provided to the expert who made the reports that referred to the document. The Master who allowed the hospital's application at first instance considered that he was bound by an earlier decision to the effect that material that an expert was required to comply with when answering questions he was instructed to consider was not part of his instruction.
The court had to construe both CPR 35.10(3) – the provision that compelled experts to set out all their "material instructions", including any privileged material of which they may have had sight when preparing their report – and CPR 35.10(4), relied upon by the appellant.

23 July 2003, Court of Appeal, Civil Division, Judgment of Lord Justice Waller.

Reference

The court decided that the purpose of CPR 35.10(4) was to prevent compliance with CPR 35.10(3) rendering a statement referred to by the expert as part of his "material instructions" disclosable unless there were grounds for believing that the expert's statement of his instructions was "inaccurate or incomplete". Provided therefore the expert set out in his report that the parts of the privileged material supplied to him as part of his instructions were material to those instructions, that the remainder of those documents remained privileged and need not be disclosed. The appellant's expert in this case had set out the material parts of the privileged material given to him as part of his instructions, and accordingly the remainder of those documents was excluded from disclosure by operation of CPR 35.10(4).

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Postscript

The basic position under CPR 31.14(2) is that a party may apply for an order for inspection of any document mentioned in an expert's report that has not already been disclosed in the proceedings. The proviso to which this is subject in CPR 35.10(4)(a) is that the court will not order disclosure of any specific document from which those instructions were taken unless it considers that the expert has given an inaccurate or incomplete statement of his instructions. While obviously privilege is lost in the material that is set out in an expert's report, provided that there is no suggestion that the report has been based on further material contained in the same documents that had not been set out as part of the instructions, then the court will not order disclosure of the remainder of the otherwise privileged documents.