Waiver of privilege of expert reports

Foxall v Carter (No. 2) [2023] NSWSC 872 was an interlocutory application dealing with a claim for legal professional privilege for expert reports and any waiver of that privilege.

The plaintiff, who was nearly nine years old at the time, participated in four horse riding lessons arranged by the defendant in Mudgee, New South Wales. The plaintiff suffered catastrophic injuries after falling from a horse after it bolted during the fourth lesson.

The parties commissioned various reports in relation to liability in preparation of the case for hearing. In doing so, the defendant qualified Dr McLean, an equine expert, who prepared several reports between 19 May 2018 and 25 October 2022. Only the first report dated 19 May 2018 was served on the plaintiff.

Dr McLean produced documents in answer to a subpoena filed by the plaintiff on a non privileged basis. The defendant then claimed privilege on all seven reports including the first report that had been served on her behalf.

The plaintiff sought an order seeking to have the claim for privilege overruled. The parties relied on submissions and did not rely on any affidavit evidence. In dealing with the plaintiff’s application, Harrison AsJ quoted the applicable law as follows:

Rule 1.9 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR)

Governs the process by which an objection may be made. Questions about whether documents are privileged, and if so, whether privilege has been waived are determined by reference to the Evidence Act 1995 (NSW) and Rule 21.3 of the UCPR.

Rule 31.34(1) of the UCPR provides:

If an expert witness provides a supplementary report to the party by whom he or she has been engaged, neither the engaging party nor any other party having the same interest as the engaging party may use: 

1. 1. the supplementary report; or
   2. any earlier report affected by the supplementary report, unless all of those reports have been served on all parties affected.

Section 119 of the Evidence Act 1995 (NSW) provides:

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

1. 2. the contents of a confidential document (whether delivered or not) that was prepared for the dominant purpose of the client being provided with professional legal services relating to an Australian … proceeding … in which the client … was … a party.

In their submissions the parties referred to New Cap Reinsurance Corporation Ltd (in liq) – Renaissance Reinsurance Limited [2007] NSWCA 257 where White J stated:

Paragraph 119(b) is important. It has been held that common law legal professional privilege does not attach to an expert and expert’s own documents, prepared by him for the purpose of expressing an expert opinion and litigation but which were not communicated to the client or the lawyer of the client, and do not reveal communications between the expert and the client, or between the expert and the lawyer for the client.

However, draft reports, and notes used in preparing a report, may stand at a different position, particularly where the expert has been retained by the party’s solicitors and it is expected that the party’s lawyers will advise on the contents of, and settle the form of, the report. There is nothing improper in such a course. It is not inconsistent with the expert’s paramount duty being the duty to the Court and not to the client retaining him or her … if they were prepared for the dominant purpose of a draft report being submitted for advice or comment by the plaintiff’s lawyers, then they would be privileged under s119.

The plaintiff argued that the defendant had waived privilege over Dr McLean’s reports. Her Honour observed that there were three threads to the waiver argument being:

1. The defendant producing the documents to the Court and inviting the Court to inspect them;
2. If it is found Dr McLean’s first report was a final report, the defendant has waived privilege over the following six reports; and
3. If the first six reports are found to be drafts it could be arguable that they were not brought into existence for the dominant purpose test.

Her Honour referred to a number of authorities before stating:

Service of an expert report in the course of litigation under the compulsion of law, that is, pursuant to court orders for the filing and service of evidence, does not waive privilege. That is conduct not inconsistent with the maintenance of privilege, such that no waiver arises. Such is the effect of section 122(5)(a)(iii) of the Evidence Act 1995. It is not until a party tenders a report or reads an affidavit into evidence that privilege is waived.

Her Honour then ruled that the plaintiff was entitled to access all of Dr McLean’s reports because the defendant had not relied on any evidence to prove the facts that the claim for privilege was properly made.

Discussion

As White J. observed in New Cap it is common for parties to obtain draft reports from experts in the course of litigation. This often occurs in medical negligence claims. Many jurisdictions in Australia have rules that are analogous to Rule 31.34 of the UCPR (NSW) requiring service of any supplementary reports if the original report is relied on.

It remains unclear why the defendant chose to serve the first report of Dr McLean but not the six reports that followed. If they were unhelpful perhaps the defendant should have qualified a new expert.

While the defendant successfully argued that there had been no waiver of privilege it was a pyrrhic victory. The failure to prove the facts on which the claim for privilege was properly made was fatal.

This article was written by Kylie Agland, Partner and Don Munro, Consultant.