Commentary
This judgment appears to provide some clarity on an issue about which seemingly conflicting advice is given to experts. It concerns the listing of documents and materials. In the chapter ‘The report, amendments, answers to questions, experts’ meetings and conferences’ in Rix, K., Mynors-Wallis, L. & Craven, C. (eds) Rix’s Expert Psychiatric Evidence, 2nd ed. Cambridge: Cambridge University Press, 2021, it states:
“Some counsel and solicitors hold that all documents and materials should be listed. Others hold that if you list everything, the other side is entitled to see everything and so you should not refer to documents that your instructing solicitors do not intend to disclose for the time being, such as draft witness statements or a report on liability and causation in a medical negligence case because, if they are listed, the other side will be entitled to see them. Boyle (2016; p.57) says that ‘any document referred to by the expert on the face of the report is, in effect, disclosed’ but the actual test is whether the other side needs the document to understand your opinion or if you have used that document as a significant part of the process of forming your opinion.”
The test as to what to list seems simply to be whether you have relied on the contents of the document. This seems to be consistent with B v Nugent Care Society [2009] EWCA Civ 827 which refers to listing ‘documents, statements, evidence, information […] which are material to the opinions expressed or upon which those opinions are based’ (my italics for emphasis).
Whether to list everything, identifying documents/materials not relied upon, or to list only documents relied upon which may give rise to questions as to what has been seen and why not relied upon could depend on the nature of the case.
This is a case of an expert whose careful compliance with Northern Ireland’s Protocol for Clinical Negligence Litigation in the High Court and Practice Direction for Experts (www.judiciaryni.uk/files/judiciaryni/decisions/Practice%20Direction%2002-21.pdf ) ensured that many of the questions it was necessary for the court to ask were answered in his report.
Learning points:
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Facts upon which you rely need to be sufficiently well referenced for the reader to know the source of the fact or assumed fact.
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If you are provided with a document which you consider to be irrelevant or unhelpful you can either (a) list it and explain that you do not rely on it or (b) return it to your instructing solicitors.
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