The Consultation
From February to April 2024, the Civil Procedure Rule Committee (‘Committee’) held a consultation on a proposed draft amendment to the Civil Procedure Rules (‘CPR’) rule 5.4C (supply of documents to a non-party from court records). Details of the consultation are available on the Committee website at: About us - Civil Procedure Rule Committee - GOV.UK (www.gov.uk).
The proposed amendment would permit a non-party to obtain specified documents in relation to the proceedings, including expert reports (except for medical reports or where a rule or practice direction provides otherwise), without the permission of the court. A non-party will be able to obtain these documents (subject to certain restrictions) where the defendant has filed an acknowledgement of service or a defence, the claim has been listed for a hearing, or a judgment has been listed in the claim.
The EWI response
The Expert Witness Institute (‘EWI’) sought the views of our members on the proposed rule change to inform our response to the consultation. We would like to thank the members who offered us their views and experiences.
While the EWI supports the Committee in its aim of increasing the transparency of court processes in the light of the ruling of the UK Supreme Court in Cape Intermediate Holdings Ltd -v- Dring [2019] UKSC 38 and the broader transparency agenda of the Lady Chief Justice, we did make some recommendations as to how the Committee could better balance the proposed amendment.
The key themes from the EWI response
We have set out below the key themes from our response to the Committee. We think that the amendment to rule 5.4C needs to balance the aims of open justice with other fundamental concerns:
- The overriding objective of the Civil Procedure Rules (‘CPR’),
- The need to ensure the safety of expert witnesses and other participants in court processes,
- The need to ensure that the confidential information of parties to the litigation is protected,
- The need to ensure that highly qualified and experienced expert witnesses are not unreasonably dissuaded from participating in court processes, and
- The need to ensure that access to justice is not compromised.
The need to balance open justice with the overriding objective
The cost of applications under paragraph 4
Making an application under paragraph 4 will have cost implications for the applicant. These may, in some cases, be considerable if the instructing party needs to identify the specific information (e.g. confidential information) in the report and justify why that information should be redacted.
This is particularly concerning because the proposal does not appear to include a requirement on the court to notify (or direct notice be given to) the parties related to an expert report of an application under paragraph 1. If this is the Committee’s intention, parties will be required to make a pre-emptive application under paragraph 4 for every report which contains information that must be redacted.
Misuse of expert reports
Our members tell us that there is a material danger that the proposed amendment would increase the risk that reports from other cases are cited or used in cases with speciously similar but materially different facts. This could lead to an increase in appeals questioning the admissibility or weight of expert evidence.
Retrospective effect
Any retrospective application of the change is likely to be expensive, especially in the absence of an effective notification requirement.
The safety of expert witnesses
The physical and psychological safety of expert witnesses (and other participants in court processes) must be paramount. The safety of participants is critical to the effective operation of the justice system. This is particularly relevant for ongoing cases where non-parties are more incentivised to engage in behaviour aimed at impacting court process.
Our members have told us that they are seeing an increase in the harassment of themselves and their colleagues from vexatious complaints, intimidation, stalking and other threatening behaviour. Access to an unredacted expert report from another case that the expert is acting in, which includes a copy of the expert’s CV, could be used by non-parties with malicious intent to track where the expert witness lives and works.
Creating a public record of expert witnesses
The reforms could, in effect, create a public record of expert witnesses. The expert witness’s view in previous cases with speciously similar, but materially different (or out of date), facts could be used by legal teams to attempt to discredit the expert witness with inappropriate comparisons to their previous opinions.
Ongoing proceedings
Our members are primarily concerned with the inappropriate disclosure of information during a court process in which they are engaged. In our view, it would be inappropriate for expert reports related to a case in progress to be released without the court’s making an active decision to do so. Such open access could potentially be abused by the members of the press, vexatious current and former clients, and malicious non-parties, among others.
Access to justice
Financial experts, in particular, have told us that the cost of applying pre-emptively to protect confidential expert reports, and especially the risk that the court might, without an explicit direction otherwise and with a presumption for provision, find in favour of transparency over confidentially, may lead some parties to conclude than alternative processes, such as arbitration, are a more appropriate avenue for resolving disputes.
In addition to the lack of clarity around the intended treatment of confidential information, they are very concerned about the apparent lack of obligation on the court to ensure that the parties related to the report are notified upon receipt by the court of an application under paragraph 1.
Exemption for medical reports
The proposed rule would exclude medical reports from the expert reports which would be available without the permission of the court. We are not clear why the Committee has settled on a category of report, rather than a category of information, for this exemption. Non-medical personal information can be as intrusive into the life of an individual as medical information.
It is also not clear whether “medical reports” would include reports based on medical information such as quantum accommodation reports, which can be very intrusive.
Key recommendations
Our key recommendations to the Committee were to:
- Include representatives of the expert witness community on sub-groups developing amendments which have the potential to materially impact the work of expert witnesses.
- If not already the intention, put in place a process to monitor the impact of the proposed amendment over a set time period, review the outcome of the monitoring at the end of that period, and make any further adjustments necessary to rule 5.4C. The EWI would be happy to work with the Committee to help monitor the impact, especially through feedback from its members.
- Consult on any proposed changes to CPR 32.13 adding express provision for expert reports.
- Retain the existing default arrangement, where the court must permit the disclosure of an expert report, for expert reports that are subject to an ongoing court process.
- Add a requirement on the court to notify, on the application of a person under paragraph 1, all the parties related to an expert report that an application has been made and offer them a reasonable opportunity to respond with an application under paragraph 4. This would reduce the additional costs and ensure information was not released inappropriately.
- Amend paragraph 4 to make it clear that the court must order, on an application of any person, that an expert report be redacted (or withheld in its entirety) in the circumstances set out at CPR 32.13, to remove all confidential information, and where there is a material risk to the safety of the expert.
- Consult on the circumstances in which access will be denied before finalising the rule.