Disclosure, privilege & waivers

• Covers the rules of waiver of privilege over instructions to expert witnesses, with relevant case law.

The rules governing waiver of privilege over instructions to expert witnesses, whether express or implied, and the circumstances in which the court can order disclosure, have frequently been misunderstood. The basic rule is contained in Civil Procedure Rule 35.10(3) and (4):

‘(3) The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.

(4) The instructions referred to in paragraph (3) shall not be privileged against disclosure but the court will not, in relation to those instructions—

(a) order disclosure of any specific document; or

(b) permit any questioning in court, other than by the party who instructed the expert,

unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete.’

Legal