In Pickett v Balkind, the High Court refused to grant an injunction to stop an opposing party from making use of a letter disclosed in error that cast doubt on an expert’s independence. In the Court’s view, although the letter had been included in error, the error was not obvious to the recipient.
Preventing The Use of Letters
The underlying dispute, in this case, was a tree root subsidence claim and the claimant was relying on the expert evidence of a structural engineer, Mr Cutting. The claimant’s solicitors applied in May to adjourn the trial listed for July 2002 on the basis that Mr Cutting could not attend for medical reasons. The adjournment application was supported by a witness statement which exhibited an unredacted letter from Mr Cutting dated 3 May 2022. In this letter, he explained about his upcoming surgery but also referred to comments received from the claimant’s counsel on the experts’ draft joint statement and attached a copy of solicitor’s and counsel’s comments.
The defendant’s solicitors said they were concerned that counsel involved in drafting the experts’ joint statement, would be in breach of the TCC Guide. In response, the claimant’s solicitors asserted that the letter was privileged and the fact that it was included in full in the exhibit rather than in a redacted form was an obvious mistake. They applied for an injunction to prevent the defendant from using the statement and letter.
How Did The Court Respond?
The High Court refused to grant the injunction. In its view, it was doubtful that the relevant sections of the letter could qualify as privileged in the first place, given that it revealed a potentially serious breach of paragraph 13.6.3 of the TCC guidance. The defendant had relied on this letter to raise its concerns about the independence of the expert with the claimant immediately and had received no satisfactory response. The High Court, therefore, felt that it would risk a sense of injustice to leave that concern hanging unanswered and therefore there was a proper basis for the cross-examination of Mr Cutting on these matters.
In any event, the High Court concluded that privilege was waived once the letter had been made available to the defendant's solicitors. It accepted the defendant’s evidence that the error was not so obvious that a reasonable solicitor would have realised that there had been an error.
This decision highlights the dangers of legal advisors interfering in the preparation of experts’ joint statements; they should not ask the experts to consider amendments to the draft statement except in exceptional circumstances and should limit their role to identifying issues which the statement should address.
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