Gary Pickett v David Balkind

Gary Pickett v David Balkind

Privilege in the expert's letter was waived by deliberate deployment in support of an application; mistake was not obvious to recipient. No injunction restraining use. Comments/aide memoire not ordered for production as not shown to be material instructions, but cross-examination of expert on independence permitted. Prior Associates report must be produced as privilege was waived by reliance in expert report.

Parties
Claimant: Gary Pickett; Defendant: David Balkind
Jurisdiction
England and Wales
Judgment Date
25 August 2022
Procedural Posture
Civil / Interlocutory Applications Prior to Trial
Outcome
Applications for injunction and production of aide memoire/comments refused; permission to cross-examine expert granted; order for production of Prior Associates report granted.
Legal Topics
Privilege Waiver, Expert Evidence, Disclosure, Injunctions, Case Management
Civil Procedure Evidence Professional Negligence Privilege Waiver Expert Evidence Disclosure Injunctions Case Management

Case Brief

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Parties

Gary Pickett

Claimant

David Balkind

Defendant

Procedural Posture

Civil / Interlocutory Applications Prior to Trial

Legal Issues

  1. 1 Whether privilege in an expert's letter was waived by inadvertent disclosure
  2. 2 Whether an injunction should restrain use of the letter
  3. 3 Whether instructions/comments to expert must be disclosed

Ratio Decidendi

Privilege in the expert's letter was waived by deliberate deployment in support of an application; mistake was not obvious to recipient. No injunction restraining use. Comments/aide memoire not ordered for production as not shown to be material instructions, but cross-examination of expert on independence permitted. Prior Associates report must be produced as privilege was waived by reliance in expert report.

Court Disposition

Applications for injunction and production of aide memoire/comments refused; permission to cross-examine expert granted; order for production of Prior Associates report granted.

Orders

  • Claimant's application for injunction refused.
  • Defendant permitted to deploy expert's letter in evidence.