UK: Disclosure And Expert Evidence In Scotland

A recent decision of the Court of Session in Edinburgh has confirmed the position in Scotland regarding disclosure of material relied upon in expert reports. The decision has highlighted the differences between the scope of disclosure and the nature of expert evidence in Scotland and in England & Wales.

Although the issue arose in the context of a personal injury action, Lord Carloway’s opinion (see Amy Whitehead’s Legal Representative v Graeme John Douglas and Another [2006] CSOH 178) will equally apply to the expert evidence produced in relation to other claims in Scotland.

The case demonstrates that differences between the Scottish and English procedural rules may give rise to opportunities where it is possible to choose the jurisdiction in which to prosecute a claim. It is important that such differences are considered at the outset of a dispute.

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A recent decision of the Court of Session in Edinburgh has confirmed the position in Scotland regarding disclosure of material relied upon in expert reports. The decision has highlighted the differences between the scope of disclosure and the nature of expert evidence in Scotland and in England & Wales. Although the issue arose in the context of a personal injury action, Lord Carloway’s opinion (see Amy Whitehead’s Legal Representative v Graeme John Douglas and Another [2006] CSOH 178) will equally apply to the expert evidence produced in relation to other claims in Scotland.

The pursuer had instructed two expert reports which had been lodged in court. In preparing the reports, the experts had referred to precognitions (informal witness statements) taken by the instructing solicitors from the victim and other witnesses, and a compensation form completed on behalf of the Pursuer. Notwithstanding the privileged nature of the documents referred to in the reports, the Defenders sought to recover these on the following grounds:

1. a party to an action is required under Rule of Court 27.1 (1) to lodge in court any document founded upon in its pleadings and since the documents should have been annexed to the reports, the reports having formed the basis of the Pursuer’s pleadings, they ought to have been lodged;
2. it is the duty of the expert to disclose all sources of information so that the conclusions reached by the experts in their reports can be tested;
3. any privilege attaching to the documents had been waived upon disclosure of the experts’ reports;
4. although the precognitions could not be put to the witnesses when they gave evidence at trial, they could be put to the expert witness to test whether the expert’s conclusions were merited.

In response, the Pursuer argued that the documents sought were privileged and not recoverable. The expert reports were not evidence but instead merely provided fair notice of what the Pursuers expert evidence might be. Rule of Court 27 (1) 1 was not in point and that there was no duty on an expert in Scotland to produce documentation upon he relied. As regards the purported waiver of privilege, the Pursuer argued that no such waiver had occurred. The Pursuer reminded the court of the importance with which the law of Scotland regards the confidentiality of the solicitor/client relationship and how Scotland had always been keen to protect documents prepared in contemplation of litigation. The Pursuer’s final argument was that the court would not order recovery of documents that could not legitimately be used at proof, and since the precognitions were not capable of being put to witnesses or of establishing anything in court, they could not be used and should not be recovered.

In refusing an application for commission and diligence (similar to specific disclosure under the CPR) by the Defender Lord Carloway indicated the following:

• In Scotland, it is not necessary for an expert to prepare or lodge a written report. Where a report is lodged it is not evidence in itself but requires to be spoken to by the expert at proof (trial) and is not a substitute for the oral evidence of the expert.

• Because an expert report is not evidence in itself, there is no absolute entitlement to material that may have been used by the expert to formulate his conclusions. If the report discloses material which was previously unknown to a party, they may seek to recover it under the normal rules for recovery of evidence, which remain unchanged.

• The requirement to lodge in court all documents founded upon (Rule 27 1 (1)) does not mean that every document referred to by an expert requires to be lodged, if these are not directly founded upon by the party.

• There are no additional duties owed to the court by an expert in Scotland over and above those of a professional or other witness under oath. The mere fact that material is disclosed in an expert report does not alter the position and once an expert is in the witness box, his evidence will depend upon what he is asked. The expert cannot volunteer information on what he is not asked. As for the "testing" of expert evidence in Scotland, this involves the analysis of an expert’s oral evidence and not "probing it with questions or using other forensic skills".

• The disclosure of expert reports is not done with a view to permitting the other side unlimited access to all material, including privileged material such as precognitions, which form the basis of the expert’s understanding of facts. A party should not be taken to have waived its rights of confidentiality and privilege merely by disclosing the existence, or even some of the content of such documents to his own expert.

In conclusion, Lord Carloway refused the Defenders’ motion and commented that had he allowed the recovery of the Pursuer’s precognitions by the Defender where these had been relied upon by the Pursuer’s expert then this might well have had a significant effect on the manner in which agents normally instruct experts in Scotland.

When reaching his decision Lord Carloway highlighted some of the key differences between Scotland and England and the use of expert evidence and disclosure generally; we have expanded upon this below providing a brief overview of these differences.

As indicated above, expert evidence is given by oral testimony in Scotland, an expert’s report serves only to providing advance notice of his evidence. In England expert reports become the evidence-in-chief of the expert and the Civil Procedural Rules in England (CPR) require expert evidence to be given in a written report unless otherwise directed by the court (CPR 35.5). As such, in England, expert reports must be addressed to the court and not to the instructing party, as is the practice in Scotland. Where an expert report is disclosed in England it may be used by either party as evidence at trial (CPR 35.11). The Practice Direction to Part 31 of the CPR also makes provision for the other party to inspect documents referred to in an expert’s report at 7.1 and 7.2. The party wishing to inspect the documents should make an informal request, which the parties should try to agree. As this case demonstrates, reference to documents by expert does not automatically entitle a party in Scotland to inspect those documents .

A further notable difference is that precognitions in Scotland remain privileged, and cannot be used as evidence in court. By contrast, witness statements in England that have been properly served will normally stand as the evidence-in-chief once the witness has been called to the stand. Additionally in England, if a witness statement is served and the witness is not subsequently called nor the statement put in as hearsay evidence, the witness statement may be used as evidence by the other party (CPR 32.5).

The above case otherwise serves as reminder that the disclosure of documents differs significantly between Scotland and England. General disclosure does not exist in Scotland where a party must instead apply to the court for an order for commission and diligence. Such order allows a party to seek recovery of generic categories of documents that may exist subject to a relevance test with a connection first requiring to be established with the pleaded case of either party. By contrast, in England each party must search for and disclose all documents and materials within their control upon which they seek to rely, together with all documents, which adversely affect their own case, adversely affect another party’s case or support another party’s case.

In conclusion, different rules give rise to different opportunities and where it is possible to choose the jurisdiction in which to prosecute a claim it is important that such differences are considered at the outset of a dispute.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 12/12/2006.