Cases - Clough v Tameside and Glossop Health Authority

Record details

Name

Clough v Tameside and Glossop Health Authority

Date

[1998]

Citation

4 AII ER 971, QBD

Keywords

Expert witness

Summary

In a medical negligence case, the defendant health authority sought to resist an application by the claimant that they should produce a psychiatric report and related communications used by the defendants' medical expert witness. The defendants argued that, while they had served their medical expert's report, the other material remained privileged. The court rejected the defendants' arguments: where an expert witness refers in their report to material supplied by his instructing solicitor as part of the background information on which the report is based, the privilege attaching to that information is the same as attaches to the report itself, and is therefore waived when it is served.

'If an expert has discounted some evidence supplied to him, he may, at the conclusion of the case, be held wrong to have done so and his opinion may thereby be invalidated. Equally, he may have assumed an incorrect significance for a particular piece of material. It is only by proper and full disclosure to all parties that an expert's opinion can be tested in court: in order to ascertain whether all appropriate information was supplied and how the expert dealt with it. It is not for one party to keep their cards face down on the table so that the other party does not know the full extent of information supplied. Fairness dictates that a party should not be forced to meet a case pleaded or an expert opinion on the basis of the documents he cannot see.'

(But see also Lucas v Barking, Havering and Redbridge Hospital NHS Trust.)