Expert Witness Journal Issue 67 June/July 2026 - Flipbook - Page 125
the client has waived privilege either expressly or by
implication.
“
The judge concluded that in the context of a liability
report, such as this, where the expert is being asked
to comment on whether the doctor in question
has been negligent, then phrases such as “having
reviewed all the documentation” or “having considered
all the papers” should be taken to mean exactly that.
This means that an expert will be considered to
have relied on all the material provided, including
statements given by the person at the centre of the
claim.
Wisdom is the right use of knowledge. To know is not
to be wise. But to know how to use knowledge is to
have wisdom.”
Charles Spurgeon
The Court Rules
Under Order 24 rule 14 of the Rules of Court of
Judicature (Northern Ireland) 1980 (the ‘Rules‘),
the court has power to order a party, at any stage of
proceedings, to produce to the court any document
in its possession, custody or power relating to any
matter in question. This is tempered by the fact
that no such order shall be made unless the court
considers that it is necessary to deal with the matter
fairly or for the purposes of saving costs. Where
privilege is claimed, the court will inspect the
document for the purpose of deciding whether such
an objection is valid.
Outcome
On the present facts, it was considered that privilege
had been waived. The judge concluded that it “cannot
be said to be fair or just to conceal relevant material on the
basis of privilege when the ability to assert such a right has
in my judgment been lost in the circumstances of this case.”
However, it was noted that legal professional
privilege is a “fundamental tenet” and that nothing
in this ruling changes that. The Defendant could
have maintained privilege if they had wanted to,
but by sending the Statement to Dr Middleton to
be reviewed, referred to and relied on, they had
e昀昀ectively waived that privilege.
A Question of Privilege
It was clear that the Defendant’s expert witness,
Dr Alan Middleton had read the Statement. It
was clearly listed that he had reviewed it whilst
undertaking his report, along with seven other
documents, including a mixture of medical notes, a
chronology, the statement of claim and the relevant
Statement. Therefore, the question for the court
was not whether he had read the document, but
whether he had relied on it, in the preparation of his
report. This was con昀椀rmed in the case of Bourns Inc
v Raychem Corp & Anor (1999) 3 All ER 15, which
stated that mere reference to a document does not
waive privilege in that document, but that there
must have been reliance upon it.
It was emphasised that the principles of fairness and
ensuring all parties are on an equal footing must
prevail here and the document must be shared. The
judge concluded that the progress of this matter
going forward would be “severely undermined” by
one party’s expert having access to material which
their counterpart had not seen, due to privilege.
It was further noted that this debate had delayed
the matter further, and that by considering that
privilege had been waived, it would help to move the
matter forward towards a resolution.
Going Forward
Forming a View
There has been a greater emphasis recently in
medical negligence cases for more transparency
and fairness for all parties. Indeed, since the Orr
case, there have been two further updates of the
Clinical Negligence guidelines re昀氀ecting this and
the guidelines of the Clinical Negligence Protocol
of 1 October 2021 highlight the importance of a
“cards on the table” approach to clinical negligence
litigation, which again would require that all parties
have access to all the documents where possible.
At various points in his report, Dr Middleton made
comments that he had “reviewed” and “considered”
all of the documentation he had been supplied
with, and cross referenced those in the production
of his report. He also added that this was all the
information that he had used in the formation of his
opinion.
“
Transparency increases credibility and accountability.”
Park Won-soon
“
In the case of Orr v Crowe Building Contractors
[2009] NIQB 17, it was held that a medical report
should not be disclosed due to privilege. However,
although it is a medical negligence case, the facts are
not analogous to the present case, as it primarily dealt
with questions of quantum and, most importantly,
the judge concluded that the expert there had not
referred to or relied on the document in question.
EXPERT WITNESS JOURNAL
A lack of transparency results in distrust and a deep
sense of insecurity.”
Dalai Lama
The judge concluded that it cannot be “fair or just”
that one party, here notably a healthcare provider,
holds a document which they are happy to share with
their expert when giving his opinion on liability,
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