Commentary
This judgment appears to provide some clarity on an issue about which seemingly conflicting advice is given to experts. It concerns the listing of documents and materials. In the chapter ‘The report, amendments, answers to questions, experts’ meetings and conferences’ in Rix, K., Mynors-Wallis, L. & Craven, C. (eds) Rix’s Expert Psychiatric Evidence, 2nd ed. Cambridge: Cambridge University Press, 2021, it states:
“Some counsel and solicitors hold that all documents and materials should be listed. Others hold that if you list everything, the other side is entitled to see everything and so you should not refer to documents that your instructing solicitors do not intend to disclose for the time being, such as draft witness statements or a report on liability and causation in a medical negligence case because, if they are listed, the other side will be entitled to see them. Boyle (2016; p.57) says that ‘any document referred to by the expert on the face of the report is, in effect, disclosed’ but the actual test is whether the other side needs the document to understand your opinion or if you have used that document as a significant part of the process of forming your opinion.”
The test as to what to list seems simply to be whether you have relied on the contents of the document. This seems to be consistent with B v Nugent Care Society [2009] EWCA Civ 827 which refers to listing ‘documents, statements, evidence, information […] which are material to the opinions expressed or upon which those opinions are based’ (my italics for emphasis).
Whether to list everything, identifying documents/materials not relied upon, or to list only documents relied upon which may give rise to questions as to what has been seen and why not relied upon could depend on the nature of the case.
This is a case of an expert whose careful compliance with Northern Ireland’s Protocol for Clinical Negligence Litigation in the High Court and Practice Direction for Experts (www.judiciaryni.uk/files/judiciaryni/decisions/Practice%20Direction%2002-21.pdf ) ensured that many of the questions it was necessary for the court to ask were answered in his report.
Learning points:
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Facts upon which you rely need to be sufficiently well referenced for the reader to know the source of the fact or assumed fact.
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If you are provided with a document which you consider to be irrelevant or unhelpful you can either (a) list it and explain that you do not rely on it or (b) return it to your instructing solicitors.
Case
In this clinical negligence action, the plaintiff is seeking access to a statement by the first defendant Dr Sterne (“the defendant”) which was sent to the liability expert instructed by the defendant’s solicitor. The defendant refused to share this on the grounds of privilege.
The plaintiff alleges negligence in the conduct of a cervical smear examination in which she allegedly suffered an injury. She further makes allegations in relation to the treatment of that injury as well as a separate condition.
The application
The plaintiff had applied for an order:
“that the first defendant shall disclose to the plaintiff the statement of the first defendant dated 13 September 2021 and referred to within the report of Dr Alan Middleton.”
The court rules
The court has power to order a party, at any stage of the proceedings, to produce to the court any document in its possession, custody or power relating to any matter in question in the cause or matter. Where privilege is claimed, the court may inspect the document for the purpose of deciding whether such an objection is valid.
Relevance and reference
Counsel for the defendant accepted the statement of Dr Sterne, who is a defendant in this action, is relevant to the matters in dispute. The statement was sent to their liability expert, Dr Middleton. He refers to it in para 1.02 of his report (judge’s emphasis added):
“In preparing this report I have had the opportunity to review the following documentation:
1. GP notes and records.
2. Causeway Hospital Records
3. North West Independent Hospital records.
4. Statement of Dr Sterne, 13th September 2021.
5. Amended Statement of Claim, 25.03.22,
6. Updated GP notes and records.
7. Updated Causeway Hospital records.
8. Chronology, dated 30th March 2022.”
Reliance
The dispute in this application was a disagreement between the parties as to whether the expert relied upon the statement.
Privilege
There is a legitimate interest on behalf of a party not to disclose certain material in order to preserve legal professional privilege. There is also a legitimate interest on behalf of a party to know what history and documentation the other party’s experts replied upon and all the sources of such material.
This was affirmed in Orr v Crowe Building Contractors [2009] NIQB 17, albeit in that case it was the defendant seeking access to an expert report obtained by the plaintiff:
“...it is still necessary to reconcile the requirements of a defendant to know the medical history replied upon by the plaintiff’s doctor so that the defendant can assess its validity with the equally legitimate interests of a plaintiff to preserve his legal professional privilege.”
When considering whether privilege has been waived in circumstances such as this case, the authorities state that there must be reference to the contents of the document at issue and reliance upon it:
“the test is whether the contents of the document are being relied on, rather than its effect” (para 12.19 of Matthew and Malek, Disclosure 3rd edition)
and:
“references to privileged material …will amount to waiver of that privilege if they amount to a “deployment” of such material” (para. 12.22 of Matthew and Malek).
The expert report
In the body of his report, Dr Middleton states variously as follows (relevant paragraphs from the report in brackets):
“The papers I have reviewed indicate that Dr Sterne was a GP working…at the Country Medical Centre…My instructions are to consider the papers and prepare a report considering the issues of breach of duty alleged against Dr Sterne.” (opening para)
“I have had the opportunity to review the following documentation…” (including Dr Sterne’s statement) (1.02)
“…having reviewed the documentation…” (1.03)
“…having…considered the papers in this case” (4.02).
There are eight categories of documents referred to by Dr Middleton. Five of these are medical notes. The other three are the statement of Dr Sterne, an amended statement of claim and a chronology. During exchanges at hearing, it emerged this chronology was prepared by the defendant’s solicitor. The plaintiff had not sought access to this although it appeared to the court it was both referred to by the expert and the content was relied upon by him. Arguably it would prove discoverable as it appeared privilege had been waived, see para 3.07 (judge’s emphasis added):
“The chronology then goes on with so many extensive consultations relating to gynaecological outpatient attendances.”
When discussing the medical records, the expert uses phrases such as:
“Review of the medical records suggest that…” (3.01)
“The records indicate..” (3.05)
“…the medical records that I have reviewed…” and “I have reviewed the blood results…” (3.09)
“the next relevant note…”
“…there are several entries in the records…” (3.13)
“Further GP records show that…” (3.19).
There are many such references and in each one the expert identifies he is referring to, and appears to be relying on, the plaintiff’s medical records. At other points in the report, he simply refers to the “documentation” or “papers”. Other than the records, there were only three other documents provided to him.
There are also references to his “instructions”:
“…my instructions in this case are that...” (3.12)
“My instructions are that…” (5.11).
The plaintiff’s counsel argued this was further evidence the expert relied on the statement as this must form part of his instructions. The defendants asserted the natural meaning of such words was that the instructions came from the solicitor. As with the chronology, the plaintiff did not seek access to the letter of instruction.
The judge noted further references in the report such as (his emphasis added):
“There is some evidence that the plaintiff was reluctant to attend for routine blood tests…” (5.11 page 17)
and…
“It is very important, when considering the issues in this case, to note that there was an apparent reluctance on the part of the plaintiff to respond to requests to have thyroid function tests monitored.” (3.13)
The expert used the highlighted words when discussing attempts to have the plaintiff attend for blood tests. The expert did not state the source of this evidence or apparent reluctance on the part of the plaintiff. This the judge thought might be the subject of a factual dispute and therefore a liability issue at trial.
When discussing what explanation was given to the plaintiff in relation to her overactive thyroid, Dr Middleton states at para 1.03:
“I am unable to opine on this allegation as I have seen no statement from any of the defendants as to what explanation was given.”
Dr Middleton had signed the expert’s declaration which was at the end of his report. This was in line with Annex A of the Expert Evidence Practice Direction (PD 02/2021). It states at para 6, “I have shown the sources of all information I have used.” This can be cross referenced to the eight categories of documents he confirms he reviewed and are listed in para 1.02 of his report. There was no indication in Dr Middleton’s report that the contents of Dr Sterne’s statement were anything other than one of the eight sources of information he used in forming his opinion on the allegations against the defendant.
Consideration
Having read Dr Middleton’s report, the court was of the view that if he considered the statement of Dr Sterne to be unhelpful or irrelevant, he certainly did not indicate as much. He could either have said so expressly or returned it to the solicitor. If he had taken either option, it would then be arguable whether it would breach legal privilege to disclose such material.
The expert was not only provided with the statement, but he was also instructed to consider it along with everything else. At the outset of the report, he states:
“my instructions are to consider the papers and prepare a report considering the issues of breach of duty alleged against Dr Sterne.”
The defendant argued the reference in the report at para 1.03 to Dr Middleton having not seen any statement from the defendants (see above), supported their stance that the expert did not rely on Dr Sterne’s statement. In the court’s judgment, taken in its proper context, that reference was only in relation to an allegation regarding the thyroid issue. The court considered the expert both reviewed and relied on the contents of the statement. In the context of a liability report where this expert had been asked to comment on whether the Doctor concerned was negligent, the court considered that words such as “having reviewed the documentation” or “having considered the papers”, led to the conclusion he had relied on all the material, including the statement obtained from the very person who is one of those being sued in this case.
On balance, the court found it difficult to conclude the expert simply put the statement to the back of his mind or did not rely on it in any way. Further the court did not consider it an appropriate safeguard for the plaintiff that all these issues could simply be left to cross examination of the expert at trial, if it got that far. By then, significant time and expense will have been spent on this case and the meeting between the liability experts, which fortunately occur in virtually all clinical negligence cases in this jurisdiction, would surely be undermined by one expert having had access to material which his counterpart had not seen. The current dispute had also delayed this expert’s meeting, which was undesirable as it simply added to delay and acted as a potential barrier to earlier resolution of the action.
The context of this case was important, involving a type of litigation which by its nature is complex and highly sensitive. The Clinical Negligence Protocol of 1 October 2021 is a statement of best practice in this field and “should normally be adhered to in all cases” (para 5). Importantly, it states that one of the objectives is:
“(vi) the promotion of an overall “cards on the table” approach to litigation…consistent with the requirement that the issues be resolved in accordance with the accepted standards of fairness and justice for both parties.”
A liability expert instructed in clinical negligence cases is tasked with providing an independent and objective view on the allegations of negligence. To assist in this task, one would expect the expert to be ordinarily sent the relevant medical notes and records, associated documentation and pleadings in the action (and at a later stage, the other expert reports). This is arguably all they should be provided with when undertaking such an important role where their duty is to help the court and this overrides any obligation to the party who has engaged them. It has at the very least the potential to taint the process if they are given purportedly privileged statements, not shared with the other party, of unknown length and detail (in this case from one of the defendants). Such statements may have been prepared contemporaneously or many years after the cause of action with the benefit of a consultation with a lawyer. It would be unrealistic to suggest this does not influence the expert’s opinion in some way. By extension, how can it be just that the independent expert on behalf of the other party does not get to see it. The court questioned how such a practice is in keeping with the promotion of a cards on the table approach to clinical negligence litigation.
It cannot be said to be fair or just that one party, in this case a healthcare provider, holds a card which they are content to show their expert when he is giving an opinion on liability but are otherwise keeping it in their pocket. They have not disclosed it to the plaintiff so that her expert may form a view on the same material and it undermines the meeting between the parties’ independent experts.
If the defendant in this case wanted to maintain privilege they could have done so. By sending the statement to their expert they deployed it, and by virtue of the fact he reviewed it, referred to it and on balance, relied on its contents in the way he did, they waived privilege.
Conclusion
Firstly, the statement related to the issues in the case. Secondly, disclosure of the document is necessary for disposing fairly of this matter. Thirdly, privilege has been waived. The proper course here is that it is simply disclosed to the plaintiff within seven days of the date of this judgment.