Chris Pamplin debates the disclosability of pre-action expert reports
The Civil Procedure Rules (CPR) Pre-Action Protocol for Personal Injury Claims states at para 3.15:
“Before any party instructs an expert he should give the other party a list of the name(s) of one or more experts in the relevant speciality whom he considers are suitable to instruct.” This is designed to give the other party the opportunity to object to any of the names. If there is no objection, there is a presumption against them instructing their own expert.
The question that arises is what effect this procedure has on whether a pre-action expert report should be disclosed when a party chooses not to rely on it and seeks leave to rely on the evidence of another expert in the field.
In the early years of CPR, Brook LJ in Carlson v Townsend [2001] EWCA Civ 511, [2001] 3 All ER 663 said that the aim of the CPR protocol was not to deprive a claimant of the opportunity to obtain confidential pre-action advice about the viability of his claim, and that
