Experts and peer review arrangements
The parties' respective experts had arranged to have a joint discussion. It subsequently became apparent to the Defendant's expert (when an email was sent to him in error) that the Claimant's expert had been seeking advice from one of her colleagues about certain points in the experts' joint statement. An issue then arose as to whether the discussions between the expert and her colleague were privileged.
The Claimant's expert had informed the court that her firm had a peer supervision arrangement in place. The judge considered that if it was becoming commonplace for there to be undisclosed arrangements in relation to "supervision" in the preparation of expert evidence (and, in particular, supervision which may alter the content of the report) that was "a very worrying development". He highlighted the importance of disclosing to the court and the other side if the expert's evidence has been "bolstered or added to" by a third party. Further, it was held that communications between an expert and a third party (other than the expert on the other side) are not privileged.
When instructing experts, a party should clarify who, in addition to the expert, might be involved in the preparation of the expert's report and remind the expert to check and adopt the analysis or conclusions of anyone to whom they have delegated work. This case is a reminder also to check, where the expert works as part of a group practice, whether a peer supervision or review arrangement is in place, especially since communications between the expert and their supervisor will not be privileged.
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