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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Vilca & Ors v Xstrata Ltd & Anor [2017] EWHC 1582 (QB) (30 June 2017) URL: http://www.bailii.org/ew/cases/EWHC/QB/2017/1582.html Cite as: [2017] EWHC 1582 (QB) |
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HQ14X02107 |
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Daniel Alfredo Condori Vilca & ors |
Claimants |
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- and - |
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Xstrata Limited Compania Minera Antapaccay S.A. |
Defendants |
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Shaheed Fatima QC & Hanif Mussa (instructed by Linklaters ) for the Defendants
Hearing date: 14 June 2017
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Crown Copyright ©
Mr Justice Stuart-Smith:
Introduction
The Factual Background
i) On 17 December 2014: "The Second Defendant shall serve expert evidence (as to Peruvian law) in support of its Part 11 application by 30 January 2015";ii) On 13 May 2015: "Each party has permission to rely on the written evidence of experts in Peruvian law (on issues of liability). The report be served by way of simultaneous exchange by 4pm on 11 January 2016";
iii) On 11 December 2015 the date for the parties to serve the written evidence of one expert each on Peruvian law was directed to be determined at a subsequent hearing;
iv) On 22 November 2016 the date for exchange of expert reports in relation to Peruvian law was extended to 5 May 2017 and directions given for reply evidence, meetings of experts and the production of joint statements;
v) On 10 May 2017 the date for exchange of reports in relation to Peruvian law was extended to 24 May 2017.
The Applicable Principles
"24. Very different considerations, however, seem to me to arise once in principle it has been decided to make the order allowing a new expert to be instructed. At this point I can see no reason for continuing to withhold disclosure of the original report which is now to be discarded and every possible reason why such disclosure should be made. In Lane v. Willis [1972] 1 WLR 326 one notes, the Court of Appeal was told, on indicating that they proposed to allow the defendants to instruct a further expert, that the defendants would thereupon disclose their existing evidence. Roskill LJ, at p 335, described that as a very proper undertaking by counsel for the defendants:
"that if this court makes the order which he seeks, at any rate in some form, the defendant's solicitors will, as soon as they get [the new report], send to the plaintiff's solicitors a copy not only of that report but of the several examinations of the plaintiff. If the defendant does not wish to call Dr Carroll at the trial, it would then be open to the plaintiff to call him if he so desired."
25. The disclosure of the original report, as a condition of being allowed to instruct fresh expert, would also meet the concern expressed by Sachs LJ in the third passage of his judgment at p 334 cited above in para 16: "no room should be left for a plaintiff to wonder whether the application is really due to the reports of a defendant's medical expert being favourable to the plaintiff."
26. I do not say that there could never be a case where it would be appropriate to allow a defendant to instruct a fresh expert without being required at any stage to disclose an earlier expert's report. For my part, however, I find it difficult to imagine any circumstances in which that would be properly permissible and certainly, to my mind, no such circumstances exist here."
Ward LJ expressed the rationale for the decision succinctly at [30]:
"Nevertheless, expert shopping is to be discouraged, and a check against possible abuse is to require disclosure of the abandoned report as a condition to try again."
"… should both prevent the practice of expert shopping, and provide a claimant in the position of Mr Beck with the reassurance that the process of the court is not being abused. In this way justice will be seen to be done."
"It follows that in disagreement with the judge, we consider that the terms of the order of 21 July did not of themselves require the defendant to obtain the permission of the court to rely on the evidence of [the second expert]. Moreover, as we have pointed out, the judge was told that the defendant would have been able to serve the report of [the second expert] within the time specified by the order of 21 July"
"27. The court approached the issue that was before it on the footing that the defendants required permission in order to rely on the second expert. That is the basis on which we are approaching the second issue in the present case. The question of principle that was decided in Beck's case was that the court has the power to give permission to a party to rely on a second (replacement) expert which it should usually exercise only on condition that the report of the first expert is disclosed. This decision is binding on us. We cannot accept that the decision is wrong or that it is conceivable that the court was unaware of the fact that reports prepared for the purposes of litigation are, until they are disclosed protected by privilege."
And
"29. The principle established in Beck v. Ministry of Defence (Note) [2005] 1 WLR 2206 is important. It is an example of the way in which the court will control the conduct of litigation in general, and the giving of expert evidence in particular. Expert shopping is undesirable and wherever possible, the court will exercise its powers to prevent it. It needs to be emphasised that, if a party needs the permission of the court to rely on expert witness B in place of expert witness A, the court has the power to give permission on condition that A's report is disclosed to the other party or parties, and that such a condition will usually be imposed. In imposing such a condition, the court is not abrogating or emasculating legal professional privilege; it is merely saying that, if a party seeks the court's permission to rely on a substitute expert, it will be required to waive privilege in the first expert's report as a condition of being permitted to do so.
30. A question that was not considered in Beck's case is whether the condition of disclosure should relate only to the first expert's final report, or whether it should also relate to his or her earlier draft reports. In our view it should not only apply to the first expert's "final" report, if by that is meant the report signed by the first expert as his or her report for disclosure. It should apply at least to the first expert's report(s) containing the substance of his or her opinion."
"The question of principle which this case raises is whether the power to impose a condition on the grant of permission to rely on expert B can properly be employed to require the disclosure of the privileged report of expert A, and if so when. If this is proper, what is being done is not directly to override the privilege, because the claimant can elect to stand upon his right to it. Rather it is presenting the claimant with a price which must be paid for the leave of the court to rely on expert B; that price is waiver of privilege in relation to expert A. … The suggested basis and justification for doing this is the need to prevent expert shopping and, where it has taken place, to put before the court of trial the whole of the available evidence on the question at issue, and not only part."
"The clear, indeed emphatic, decision was that where the court has power to attach such a condition to an order which is needed by the party changing expert it should attach it."
This summary omitted any qualification such as "usually": but I do not understand Hughes LJ in this passage as intending to remove the qualification as a matter of principle, not least because he immediately thereafter set out [29] of the judgment in Vasiliou which expressly includes the qualification "usually": see above. Furthermore, when Hughes LJ provided his own formulation of the principle at [30]-[31] he did so in terms that were consistent with Beck and Vasiliou in (a) identifying the rationale for imposing a condition as "to maximise the information available to the court and to discourage expert shopping", and (b) in re-introducing the qualification "usually".
Application of the Principles to the Present Case