Frasers Group plc v Saxo Bank AS & Anor [2024] EWHC 188 (Comm)
Can parties obtain access to each other’s communications with their expert witnesses, when the instructing lawyers are not permitted to get involved in the drafting of joint statements?
In the case of Frasers Group plc v Saxo Bank AS & Anor [2024] EWHC 188 (Comm), HHJ Pelling KC considered the issues relating to whether a party’s correspondence with their expert leading up to the joint meeting of the experts should be disclosed.
The claimant had made an application for an order compelling the second defendant, Morgan Stanley, to disclose communications between its solicitors, Clifford Chance, and its experts in relation to the preparation of expert joint statements. The application was opposed on the basis that the material sought was privileged, privilege had not been waived, and none of the other exceptions that apply are either engaged or had been relied on.
The claimant’s solicitors, Reynolds Porter Chamberlain, had written to the second defendant’s solicitors asserting that it was wrong for solicitors to communicate with their experts in relation to the contents of joint statements, stating that they were not communicating with any of the experts they had instructed in connection with the contents of the joint statements and asking for them to confirm they had and would adopt a similar approach.
In response the second defendant’s solicitors described the communications as being about logistics and timings, and ‘to raise issues of clarity or completeness with a view to ensuring that the joint statement was a helpful as possible for the court in identifying the key issues between the experts and articulating clearly each expert’s position on those issues.’
There was no argument as to the basic principle that communications between solicitors and expert witnesses that they instruct are generally subject to litigation privilege. There is only one quasi-statutory exception contained in the CPR rule 35.10(3) which requires an expert’s report to state the substance of all material instructions on the basis of which the report was written. Under CPR rule 35.10(4) such instructions to an expert are not privileged, but the court will not order disclosure of the documents containing such instructions, unless it is satisfied that there are reasonable grounds to consider them to be inaccurate or incomplete
The aim of rule 35.10 is to ensure that the expert states the factual basis of assumptions he or she was required to make for the purpose of expressing an opinion and not to state the substance of all communications. If the documents concerned do not fall within the limited subset of documents referred to in CPR rule 35.10 then they are privileged and remain so until privileged is waived.
The judge reached no concluded view as to whether in principle CPR rule 35.10(4) was capable of being applied to instructions given ahead of a joint meeting, although on a purposive construction of that provision, he saw ‘no reason why it should not’. However, this point did not apply because the application did not arguably suggest that the instructions concerning the factual assumptions that the defendant’s experts were to make had been given.
The application could therefore only succeed if either the documents that were sought fell within another recognised exception to litigation privilege or if privilege could be said to have been waived.
The claimant’s counsel maintained that the material which was sought was not privileged at all on the basis of paragraph 13.6.3 of the Technology and Construction Court (‘TCC’) Guide and/ or the principles submitted were to be derived or had been derived from that paragraph by His Honour Judge Stephen Davies in BDW Trading Limited v Integral Geotechnique (Wales) Limited [2018] EWHC 1915 (TCC).
Paragraphs 13.5.2 and 13.6.3 state: –
“13.5.2. In many cases it will be helpful for the parties’ respective legal advisers to provide assistance as to the agenda and topics to be discussed at the experts’ meeting. However, save in exceptional circumstances and with the permission of the judge, the legal advisers must not attend the meeting. They must not attempt to dictate what the experts say at the meeting …
“13.6.3. Whilst the parties’ legal advisers may assist in identifying issues which the statement should address, those legal advisers must not be involved in either negotiating or drafting the experts’ joint statement. Legal advisers should only invite the experts to consider amending any draft joint statement in exceptional circumstances, where there are serious concerns that the court may misunderstand or be misled by the terms of that joint statement. Any such concerns should be raised with all experts involved in the joint statement ….”
However, none of this led to the conclusion that a communication by a solicitor with an expert either is not privileged or ceases to be so. The judge went on to say that ‘there is nothing within either the TCC Guide or CPR Part 35 (other than CPR rule 35.10.4) or any practice direction that disapplies litigation privilege as a result of such considerations and the insertion of the limited exception in CPR rule 35.10.4, suggests that no such wide-ranging disapplication was intended or made.’
The judge came to the conclusion that unless it could be demonstrated that privilege had been waived, it would be incorrect in general to directly disclose the documents that were requested. The application was adjourned so that the trial judge could decide the waiver issue at the beginning of the trial because the judge was unable to reach a definitive decision on it.
Sarah Hope, Costs Lawyer
15.08.2024