Expert privilege in civil evidence /
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| Author / Creator: | England, Paul, 1971-. |
|---|---|
| Imprint: | Oxford : Hart, 2011. |
| Description: | xxi, 243 p. ; 25 cm. |
| Language: | English |
| Subject: | |
| Format: | Print Book |
| URL for this record: | http://pi.lib.uchicago.edu/1001/cat/bib/8263966 |
Table of Contents:
- Preface
- Table of Cases
- Table of CPR Provisions
- 1. Introduction
- Background
- Issues Covered
- 2. What Type of Privilege?
- Introduction
- Legal Advice Privilege
- Qualifying Communications
- Who is the Lawyer?
- The Client and Client Experts
- Litigation Privilege
- Basic Principles
- Adversarial Proceedings
- Dominant Purpose
- Contemplated Litigation
- Production of Documents to Third Parties
- Relationship with Confidentiality
- Common Interest Privilege
- Without Prejudice Communications
- Chapter Summary
- 3. Part 35
- Introduction
- To Whom Does Part 35 Apply?
- 'Behind the Scenes' Experts
- 'Part 35' Experts
- The Effect of Expert Status on Privilege
- Carlson v Townsend
- The Rationale for Part 35
- Jackson LJ's Review of Civil Litigation Costs
- a. Case Management
- b. One Size Does Not Fit All
- c. Costs Sanctions
- d. Concurrent Evidence ('Hot Tubbing')
- Chapter Summary
- 4. Instructions
- Introduction
- CPR 35.10
- Objectives
- CPR 35.10(3)-What the Report Must Contain
- CPR 35.10(4)-Material Instructions and their Status
- Instructions and Inaccurate or Incomplete Statements
- Undisclosed Basis of Discussion-Morris v Bank of India
- Documents Provided for Instruction-Lucas v Barking
- Chapter Summary
- 5. Documents Generally Referred to in the Report
- Introduction
- Documents 'Mentioned'-Expandable v Rubin
- Background
- First Instance and Appeal
- Second Appeal
- The Effect of Mentioning a Document
- The Old Rule
- Under the CPR-Prima Facie Right to Inspection?
- Waiver of Privilege by Deployment
- What is Required?
- Reliance on 'Effect' or 'Contents'?
- 'Cherry-Picking' Content-Nea Karteria
- Support for Nea Karteria
- Scope of Waiver-Identifying the 'Transaction'
- Chapter Summary
- 6. Pre-Existing Documents
- Introduction
- The Status of Original Documents
- The Status of Copies
- An Old View-The Palermo
- A Different View-Ventouris v Mountain
- Copies Reconsidered-Sumitomo Corporation
- Translations
- Selections-the Rule in Lyell v Kennedy
- A Note on Production
- Chapter Summary
- 7. Joint Experts, Statements and Discussions
- Introduction
- Instructions to Single Joint Experts
- The Applicable Rules and their Effect
- Access to Joint Experts
- Use of a Unilateral Expert by another Party
- Unilateral Experts Used by another Party
- Unilateral Expert Becoming a Joint Expert
- Discussions and Statements between Experts
- Joint Statements-CPR 35.12
- Status of Joint Statement and Discussions
- Robin Ellis v Malwright Ltd
- Losing Without Prejudice Protection in a Joint Statement
- Can the Experts Bind the Parties?
- Joint Statements Ordered for Mediation
- Aird v Prime Meridian
- Chapter Summary
- 8. The Status of Draft Reports
- Introduction
- Unserved Expert's Reports
- Earlier Drafts by the Same Expert
- Jackson v Marley Davenport
- Complications from County Court Decisions
- Reports Prepared after Disclosure of Earlier Report
- Fairness and Justice Overriding Privilege?
- Chapter Summary
- 9. Changing Experts
- Introduction-When will this Problem Arise?
- Personal Injury Cases
- Lane v Willis
- The Beck v Ministry of Defence 'Principle'
- Disclosure-a Condition of Permission
- Is Beck a Narrow Authority?
- Broader Application of the 'Beck Principle'
- A Valuation Case-Vasiliou v Hajigeorgiou
- Permission not required if Expert Unnamed
- Effect of Naming the Expert in an Order
- Expert Shopping
- Privilege not 'Abrogated but 'Waived'
- Which Draft Report should be Disclosed?
- Application in the County Court-Carruthers
- Background
- Disclosure of any Report
- Problems with Carruthers
- A Narrower View of Carruthers
- Chapter Summary
- 10. Experiments and Surveys
- Introduction
- Experiments in Patent Cases
- Experiments without Notice
- Abandoned Experiments
- 'Work-Up' Experiments
- Survey Evidence
- Disclosing the Context of Surveys
- Surveys in Relation to Experiments
- Reconciling the Experiment Cases-a Discussion
- Honeywell
- Laddie J's Critique of Honeywell in Electrolux
- Pumfrey J's Critique of Electrolux in Mayne v Debiopharm
- A General Principle?
- 11. Use of Reports in proceedings by Third Parties
- Introduction
- The Basic Rule-CPR 35.11
- Gurney Consulting Engineers-Background
- Gurney-the Argument
- Relationship between CPR 35.11 and CPR 35.4
- Notification of Use and Reliance
- Other Applicable Rules?-CPR 35.1 and 35.7
- Shepherd Neame-Background
- Shepherd Neame-the Argument
- Relationship with CPR 35.11
- Chapter Summary
- 12. Collateral Use of Expert Materials
- Introduction
- Context
- Rules for Witness Statements and Disclosure Documents
- A Rule for Expert Reports?
- Collateral Use Pre-CPR
- Implied Undertaking
- The 'Compulsion' Principle
- The Difference between Expert Reports and Witness Statements
- Restrictions on Use of Experts Reports under the CPR
- Limits on Interpretation of CPR 35.11
- Guidance in L'Oreal v Bellure
- Restrictions on Using Documents Referred to in Report
- Guidance in SmithKline Beecham
- Restrictions on Use of Deposition Evidence
- Dendron-Facts
- Dendron-Application of the Compulsion Principle to Depositions
- Dendron-Effect of the CPR on Deposition Evidence
- Restrictions on Use of Expert Material by Third Party
- Paul Sayers v SmithKline Beecham
- Application of CPR 5.4C(2)
- Identifying Documents with Precision
- Documents Read in Open Court
- Open Justice
- Meaning of 'Open Court'
- Protecting Material Read in Open Court
- Exercising Discretion to Protect Material
- Lifting Restrictions on Collateral Use
- Identity between Implied Undertaking and CPR 31.22
- The Interests of Justice
- CPR 31.17 Must be Considered
- Use in Foreign Proceedings
- Chapter Summary
- 13. Litigation Privilege-Competing Forces
- Introduction
- Litigation Privilege and Policy
- The Rationale for Litigation Privilege
- Is Litigation Privilege an Absolute Right?
- Part 35 Overriding Expert Privilege
- The Starting Point
- Instructions
- Joint Experts and Discussions between Experts
- Changing Experts
- Use of Reports by Third Parties
- Conclusions
- 14. Practical Notes and Queries
- Appendices
- A. Access to Justice-Final Report: Chapter 13 'Expert Evidence'
- B. Part 35-Experts and Assessors
- C. Practice Direction-Experts and Assessors
- D. Protocol for the Instruction of Experts to Give Evidence in Civil Claims
- E. Part 31-Disclosure and Inspection of Documents
- F. Practice Direction-Disclosure and Inspection
- G. Part 5-Court Documents
- H. Practice Direction-Court Documents
- Index
