Tubb v JD Wetherspoon Plc [2011] EWCA Civ 136 (25 February 2011)

Tubb v JD Wetherspoon Plc [2011] EWCA Civ 136 (25 February 2011)

The court has the power to require disclosure of a privileged expert report as a condition for granting permission to rely on a substitute expert under CPR 35.4, and this power applies equally to pre-issue and post-issue changes where the expert was instructed for the purpose of proceedings. The imposition of such a condition is justified to discourage expert shopping and promote openness, and should usually be exercised once the parties have engaged in the pre-action protocol process.

Citation
[2011] EWCA Civ 136
Parties
Claimant/respondent: Ricky Edwards-Tubb; Defendant/appellant: JD Wetherspoon PLC
Jurisdiction
England and Wales
Judgment Date
25 February 2011
Procedural Posture
Personal Injury Appeal / Court of Appeal Judgment on Appeal From Bristol County Court
Outcome
Appeal allowed
Legal Topics
Expert Evidence, Legal Professional Privilege, Case Management, Pre Action Protocols, Expert Shopping
Civil Procedure Personal Injury Expert Evidence Legal Professional Privilege Case Management Pre Action Protocols Expert Shopping

Case Brief

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Parties

Ricky Edwards-Tubb

Claimant/respondent

JD Wetherspoon PLC

Defendant/appellant

Procedural Posture

Personal Injury Appeal / Court of Appeal Judgment on Appeal From Bristol County Court

Legal Issues

  1. 1 Whether the court can require disclosure of a privileged expert report as a condition for relying on a different expert's evidence under CPR 35.4
  2. 2 Whether there is a distinction between pre-issue and post-issue expert changes for the purposes of imposing such a condition

Ratio Decidendi

The court has the power to require disclosure of a privileged expert report as a condition for granting permission to rely on a substitute expert under CPR 35.4, and this power applies equally to pre-issue and post-issue changes where the expert was instructed for the purpose of proceedings. The imposition of such a condition is justified to discourage expert shopping and promote openness, and should usually be exercised once the parties have engaged in the pre-action protocol process.

Court Disposition

Appeal allowed

Orders

  • Order of the Deputy District Judge restored, making permission to rely on the substitute expert conditional on disclosure of the earlier expert's report.