COLE v DYER No. SCGRG-97-259 Judgment No. S272 [1999] SASC 272

The appeal raises issues as to the application of r38 of the Supreme Court Rules and the question of whether a waiver of legal professional privilege in relation to the documents is to be imputed.

The plaintiff Mr Cole claims damages for personal injury. He was riding a bicycle at about 6.00am in February 1994 on the Sturt Highway between Barmera and Glossop. He was hit from behind by a truck being driven by the first defendant Mrs Dyer. She was travelling in the same direction as the plaintiff. Just before the collision an unidentified vehicle was being driven on the Sturt Highway in the opposite direction to the direction of travel of the plaintiff and Mrs Dyer. The nominal defendant is the second defendant. The plaintiff alleges that the impact was caused by the negligent driving of Mrs Dyer and of the driver of the unidentified vehicle. Mrs Dyer is alleged, in brief, to have failed to keep a proper lookout and to have driven at a time when her eyesight and visual capacity were significant impaired. I mention that at the time of the accident Mrs Dyer was almost 75 years of age. The driver of the unidentified vehicle is alleged to have failed to dip the headlights of that vehicle from high beam to low beam, presumably with the result that the headlights interfered with the forward vision of Mrs Dyer. There is also an allegation that this driver failed to allow Mrs Dyer adequate room to move to her right so as to overtake the plaintiff in safety.

The solicitors for Mrs Dyer obtained expert reports from Professor Triggs and Mr Aust. Professor Triggs' qualifications are not stated in his report. No complaint is made about that, and I assume that the plaintiff's solicitors know what they are. Mr Aust's formal qualifications appear on his report. The report states that he is an engineer.

Professor Triggs' report deals with the visibility of the plaintiff's bicycle to Mrs Dyer. It comments on matters such as the natural lighting, the plaintiff's clothing, the lighting on the bicycle, and the visibility distance from Mrs Dyer's point of view. The report comments on the impact of ageing on her vision, and the impact of glare from the lights of the unidentified vehicle.

Mr Aust's report deals with a number of aspects of the accident. Part of the report deals with the visibility of the plaintiff and his bicycle at the time of the accident. It considers the effect on that visibility of the headlights of Mrs Dyer's vehicle, and the effect on Mrs Dyer's vision of the headlights of the unidentified vehicle.

Each report refers at times to things said by Mrs Dyer about the circumstances of the accident. On appeal it was agreed that the experts were referring to two statements given by Mrs Dyer to assessors engaged by the solicitors for Mrs Dyer.

The two expert reports were provided by the solicitors for the first defendant to the solicitors for the plaintiff, as required by r38.01.

By application dated 27 January 1999 the solicitors for the plaintiff then sought the following order:

"That pursuant to r38.01(7) and r38.01(1) the first defendant do file and serve upon the plaintiff a list identifying the material upon which the first defendant's experts have based their opinions and do produce copies of the materials to the plaintiff within 21 days."

A Master ordered the defendant to provide "a list of the materials submitted to Mr H S Aust and Professor Triggs in relation to their reports". That list was duly provided.

The solicitors for the plaintiff then made application for an order that the solicitors for the first defendant provide a copy of a number of the documents identified in that list. It was and is conceded by the plaintiff that the documents in question were subject to legal professional privilege, and that their entitlement to the order sought rested upon the requirements of r38 or upon an imputed waiver of privilege.

In the decision under appeal the Master held that a waiver of privilege should not be imputed, and refused to make the order sought.

On appeal, the only issue argued was the entitlement of the plaintiff to a copy of the two statements made by Mrs Dyer to the assessors. The amended notice of appeal claims that the Master should have made the order sought either because r38.01 required the solicitors to produce the statements or because a waiver of privilege should be imputed. In oral submissions it was only the second of those arguments that was pursued. However, it is desirable to deal with the impact of r38 as well, because the impact of the Rule is relevant to the question of imputed waiver of privilege.

Rule 38 of the Supreme Court Rules relevantly provides as follows:

"38.01(1) Within 21 days after the close of pleadings or affidavits each party in an action shall deliver to all other parties a full copy of every expert report in the party's possession or power relating to any matter in issue in the action.

38.01(6) For the purposes of Rule 38.01 'expert report':

(a) means a written report which contains or includes the opinion of any expert (which expression includes any of the persons described in Sub-Rule (6)(b) hereof) on any matter in issue in the action, and includes a report in which the expert comments upon the report or reports of any other expert; and

(b) includes a report from any medical practitioner, dentist, psychologist, physiotherapist, chiropodist, chiropractor or any other person who has examined, treated or tested any party to the action or otherwise offered any professional opinion in connection with any injury or illness in issue in the action.

38.01(7) Other than with the leave of the Court, no party is to adduce expert evidence at a trial unless the following matters are set out in a report or reports delivered or disclosed in accordance with this Rule, or in particulars delivered in accordance with Sub-Rule (8):

(c) particulars identifying the material upon which the expert bases his or her expert opinion.

38.01(8) When the substance of the expert's evidence or any of the other matters referred to in Sub-Rule (7) is or are not fully set out in the report or reports delivered or disclosed under this Rule, particulars in writing (which may be furnished by letter from a party or the solicitors for that party) setting out those matters, or which when read together with any report or reports which have previously been disclosed, adequately canvass those matters, shall be delivered to all parties no later than the date upon which the report, or if more than one report, the last report, must be delivered pursuant to this Rule."

In Wilson v Porter and Whitehead Pty Ltd (1988) 46 SASR 547 the Full Court considered r38 in an earlier form. The Court held that an expert report for the purpose of r38 did not embrace material that was not included in the report but which had been relied upon in the compilation of the report. I consider that the decision is applicable to r38 in its present form. Rule 38.01(1) does not require the delivery of material provided to an expert for the assistance of the expert in preparing a report. It requires only the delivery of the report itself. It follows that this provision could not be used to require the solicitors for the first defendant to provide a copy of the statements made by Mrs Dyer.

Each of the two reports, on its face, identifies material drawn from Mrs Dyer's statements upon which the opinions expressed are based. On the other hand, reading the reports one cannot say with certainty that the material identified is the only material from Mrs Dyer's statements upon which the opinions are based.

The plaintiff's solicitors proceeded on the basis that they were entitled under r38.01(8) to an order for particulars in writing identifying the material upon which each expert based his opinion. The plaintiff's application of 27 January 1999 can probably be treated as an application for such particulars. Rule 38.01 appears to leave it to the trial judge to decide if adequate particulars were given. It may not envisage a pre-trial application for particulars. But the right to have the adequacy of the particulars decided before trial was not challenged before me. It is obviously convenient to do so. And r38.02 assumes that issues under r38.01 will be dealt with before trial. I proceed on the basis that the application was a competent one. I do not have to decide the point, as it was not argued. That application required the Master before whom it came to decide whether, on its face, the report appeared to provide those particulars. If it did, the application should have been dismissed. If it did not, then an order for particulars should have been made.

It had to be accepted in this case, as in any other such case, that it was possible that if Professor Triggs or Mr Aust were called at trial, it would emerge that they had relied upon material other than the material identified in the report or identified by way of particulars. That is a risk that a defendant runs if the defendant relies upon the report on its face, or upon particulars provided by the defendant which prove to be inadequate. The defendant must then suffer the consequences of the failure to provide proper particulars. Those consequences are referred to in r38.02.

The point that must be borne in mind is that at this stage of the proceedings the plaintiff was entitled only to what appeared to be adequate particulars.

It follows that in their application of 27 January 1999, the plaintiff's solicitors went beyond the provisions of r38.01 in seeking as well a copy of the material upon which the experts had based their opinion. They were entitled to particulars of that material, not a copy of it. I respectfully agree with what Judge Lunn said on this point in Kavanagh v Philpot and Flinders Medical Centre (1998) 197 LSJS 411 at 413 when he said:

"While it is sometimes possible to give particulars by supplying a copy of a document relating to the topic of the particulars, they normally are given without producing as part of them any relevant document which is to be relied upon in evidence. In the law on pleadings particulars are a well understood concept by which proper disclosure is made of the pleader's case so as to enable a fair trial to occur in disclosing what is the case which the pleader intends to make out at trial ... In their context in R38.01 the 'particulars' envisaged have a like function. They are meant to be proper notice to the other parties of the material relied upon by the experts in reaching their opinions so as to enable the other parties to be properly prepared at trial to cross-examine the experts and to adduce any refuting evidence. As in the case of pleadings the degree of particularity required under R38.01(7) and (8) will depend upon the precise circumstances of the case ... Whether a party has satisfied R38.01(7) and (8) by the particulars given in either the report or separately will usually be a matter for the trial judge to assess at the time when the expert gives his evidence."

In short, the adequacy of particulars given under r38.01 will usually be decided at trial, if the expert is called. But it may be that it can also be decided, at least in a preliminary manner, pre-trial.

In my respectful opinion the Master's order that the defendant's solicitors provide to the plaintiff's solicitors a list of the materials submitted to the experts was not the appropriate response to the application. What fell to be decided was whether each report contained the required particulars, and if it did not, what further particulars should be ordered. In that respect the Master's order did not go far enough. On the other hand, there is no apparent reason to require the provision of a list of all material provided to each expert. In that respect the Master's order went too far.

Each report appears to me to provide particulars identifying the material from Mrs Dyer's statements upon which the expert based his opinion. That being so, the Master should have called upon the first defendant to indicate whether it was satisfied that the reports provided the required particulars. When I put that question to Mr Kourakis QC, counsel for the first defendant, his answer was that the first defendant was so satisfied. He accepted that should it emerge at trial that either expert had based his opinion on material not properly particularised, the first defendant would have to face the consequences of that. If apparently adequate particulars are given, the matter must rest there at the pre-trial stage.

The further application to the Master for a copy of the documents submitted to the experts could not succeed under r38.01. There are two reasons, and I have already touched upon them. The first is that the report does not include materials submitted to the expert: Wilson v Porter and Whitehead Pty Ltd (1988) 46 SASR 547. The second is that the obligation under r38.01 is to provide particulars, not a copy of the material upon which the opinion is based, let alone material provided to the expert that was not used as a basis for the opinion of the expert.

I add, so there is no misunderstanding, that the particulars required under r38.01 are not provided by identifying the source of the material upon which the expert has based his opinion. Thus, in the present case, it would not have been sufficient if the expert had stated, or particulars had been given, that the expert relied upon matters contained in the statement of Mrs Dyer. Particulars must be given of the actual matters relied upon. But usually adequate particulars can be given without providing the statement or such other document as might be relevant. Of course, there may be cases in which proper particulars could only be given by disclosing the whole of the document or matter relied upon.

Mr Blumberg, counsel for the plaintiff, argues that it is difficult for the plaintiff's solicitors to be sure that all material in Mrs Dyer's statements upon which the experts have based their opinion has been disclosed and identified. That is a difficulty that r38.01 does not deal with directly. As I have said, the defendant in this case runs the risk of it emerging at trial that either expert has relied upon material from Mrs Dyer not identified in the expert's report. Should that emerge, the trial judge will exercise the powers conferred by r38.02. At the pre-trial stage, r38.01 does not ordinarily require the production of materials submitted to an expert.

In the present case there is no basis for concluding that the requirement to give particulars can be met only by requiring the production of the statements made by Mrs Dyer to the assessors. The first defendant was right not to pursue its appeal based on r38.01.

In Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 the High Court held, applying its decision in Attorney General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 that whether a limited disclosure of privileged material gives rise to an implied or imputed waiver of legal professional privilege falls to be resolved by reference to the requirements of fairness in all the circumstances of the particular case. Those words are taken from the judgment of Deane, Dawson and Gaudron JJ at 96, but all members of the Court proceeded on the same basis.

The High Court's consideration of the question of fairness in the two cases referred to demonstrates that fairness in this context is not to be narrowly conceived. On the other hand, it is not fairness at large that is under consideration. It is fairness in the context of particular litigation, although the consideration of fairness is not confined to events occurring in the very same proceedings in the course of which the privilege is claimed: see Gummow J in Goldberg at 121. The ultimate question is whether the manner in which a party has used or disclosed privileged material requires as a matter of fairness that privilege in relation to that material be treated as having been waived. It is helpful to consider the manner in which the issue was posed by members of the Court in Maurice. Gibbs CJ said (at 481):

"... the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production."

"An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege. The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication."

"Waiver of legal professional privilege by imputation or implication of law is based on notions of fairness. It occurs in circumstances where a person has used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage."

"It would not be fair to allow privilege to be waived with respect to a portion of a document or a conversation without requiring disclosure of the rest of it, at least if the document or conversation dealt with the one subject matter ... The cases are not entirely consistent and perhaps what is fair by way of disclosure must ultimately depend upon the relevant circumstances."

In considering the issue of fairness in a particular case, it is important to bear in mind that legal professional privilege is a substantive and fundamental common law doctrine: Goldberg v Ng at 121, Gummow J.

The claim that a waiver of legal professional privilege is to be imputed to the first defendant as a matter of fairness must be based ultimately upon one of a number of possible matters, or upon those matters in combination. The first matter is the fact that the solicitors provided the statements to the experts for their consideration and use in preparing an expert report that would have to be disclosed to the plaintiff. The disclosure is at least a limited waiver of privilege. If that submission succeeds, it would seem to follow that any privileged material disclosed to an expert for use in connection with the preparation of a report that must be disclosed loses the protection of legal professional privilege. The second matter upon which the plaintiff's argument might be based is the actual disclosure of the report, and the fact that the report indicates that the expert has based his opinion upon material contained in the statements of Mrs Dyer. The third matter is the possibility of unfairness or inconvenience should the expert later be called, and should it emerge that the expert has based his opinion upon material not adequately particularised. The fourth matter is the requirement that if the expert be called, each matter upon which the expert's opinion is based be expressly stated and ultimately proved: see Trade Practices Commission v Arnotts Ltd (1990) 92 ALR 527 at 533.

I turn now to consider the authorities to which I was referred.

In Wilson v Porter and Whitehead Pty Ltd (1988) 46 SASR 547 the Full Court implicitly rejected the submission put to me. Its decision that the report of which disclosure was required by the earlier r38 did not include materials submitted to the expert implicitly proceeds on the basis that such material remains privileged. If privilege was lost by the submission of the material to the expert, it is surprising that the Full Court did not say so. I add that in that case it appears that the expert report on its face indicated that material submitted to the expert had been relied upon. The decision is a substantial obstacle to the plaintiff in the present case. On the other hand, there is only a glancing reference to waiver of privilege, and it is possible that this issue was not considered. That possibility gets some support from Copping & Perball v ANZ McCaughan Limited (No 2) (1995) 181 LSJS 157. There King CJ, who wrote the leading judgment in Wilson v Porter and Whitehead, referred to the possibility of waiver of privilege by the provision of material supplied to an expert witness to enable him to furnish an opinion. He said (at 161):

"Whether the supply of the statement to the expert would in the circumstances have amounted to a waiver of privilege does not require a decision on this appeal ..."

He may have been treating the issue as open as a matter of law. The other members of the Court did not refer to the point.

In Robinson v Adelaide International Raceway Pty Ltd [1993] SASC 4163; (1993) 61 SASR 279 the plaintiff sought the production of statements of witnesses that had been provided to a doctor for use by him in considering whether an accident was the cause of the plaintiff's injuries. The doctor's report had been provided to the plaintiff under r38. Olsson J treated Wilson v Porter and Whitehead as having decided that a waiver of privilege is not be imputed from the submission of privileged material to an expert for consideration in connection with the provision of a report. As I have indicated, I agree that it appears as if that case did decide that point. However, with all respect to Olsson J I cannot agree that the decision of the High Court in Maurice dictated that conclusion simply because the disclosure of the report in question was not voluntary, being required by r38.01. In my opinion the ultimate issue is one of fairness. The fact that an expert report is required to be disclosed by operation of r38.01, and that the disclosure is not made voluntarily, is a relevant matter in deciding whether fairness requires that a waiver of privilege in relation to source materials be imputed. But the mere fact that the disclosure is not made voluntarily cannot be decisive, if the ultimate question is one of fairness. Each case has to be considered on its facts.

The Full Court decision in Wilson v Porter and Whitehead does appear to require me to reject the submission advanced by counsel for the plaintiff. The present case is indistinguishable from that case and from Robinson. But because the issue of imputed waiver has not been fully considered, it is appropriate to look to authority elsewhere, and to consider the issue on its merits. It is desirable to do that for another reason. If each case has to be considered on its facts then the Full Court decision cannot establish a rule of general application.

Dingwall v Commonwealth of Australia [1992] FCA 627; (1992) 39 FCR 521 was an attempt by the plaintiff to get access to material submitted to a medical expert for consideration by that expert in connection with the provision of a report. The material was treated as privileged, subject to the question of waiver. I gather (it is not completely clear) that the expert's report had been disclosed to the plaintiff. The trial had not begun. It was accepted that the report would in due course be tendered in evidence. The judge directed that an enquiry be made of the medical expert in question, and in response to that enquiry the expert replied that he had not relied upon the information provided to him in expressing the opinion set out in his report.

Foster J specifically rejected a submission that the mere provision of the material to the expert witness for the purpose of providing a report gave rise to an imputed waiver of privilege. In light of the answer given by the doctor, which matter Foster J decided not to pursue at that stage, it followed that a waiver of privilege could not be imputed. Foster J contemplated (at 524) that had the material been relied upon in preparing the report, a waiver of privilege might be imputed. I am unsure whether Foster J there assumed reliance upon material that was not itself adequately identified in the report, or reliance as well upon material adequately identified. The decision is authority for the view that the submission of privileged material to an expert for use in connection with a report should not of itself be treated as waiving privilege in that material. But that is all that the case decides.

In Sevic v Roarty [1998] NSWSC 462; (1998) 44 NSWLR 287 the New South Wales Court of Appeal had to consider the common law principles and the effect of the Evidence Act 1995 (NSW) in this area. This was an action by the plaintiff against a surgeon for damages for negligent mistreatment. An order was made for the filing of expert reports. The defendant filed an expert report from Dr Tinning. That report referred to a folder of documents provided to the doctor. The plaintiff sought production of these documents. Dr Tinning's report had to be filed only if it was to be relied upon at the trial: see Sheller JA at 295D. The report did not comply with the requirement in the relevant rules that it set out the facts on which the doctor's opinion was formed: see Sheller JA at 297D.

Sheller JA decided that the plaintiff's entitlement to see the documents referred to by the doctor was regulated by the Evidence Act. He decided that under that Act, legal professional privilege had not been waived. However, he began by considering the position at common law. He said that Dr Tinning's report was disclosed to enable the defendant to rely upon it. He did not think it important at common law whether the disclosure of the report was regarded as voluntary or involuntary: at 296C. He said that fairness required that the defendant should not be permitted to disclose as much of the material submitted to the doctor as it pleased, and to withhold the remainder: at 297E. It is implicit in his judgment that there was no way of telling what material the doctor had relied upon in forming his opinion. Sheller JA dismissed the appeal because he took the view that the Evidence Act produced the result that privilege had not been waived.

Powell JA agreed in the result, but reached that result by deciding that there had been no waiver of privilege at common law. He said (at 301C) that:

"... waiver is not to be implied or imputed where the document the delivery of which is relied upon to found the implication, or to support the imputation, of waiver was delivered - whether to the other party to the litigation or to a third party - pursuant to an order of a court or otherwise under compulsion of law unless the documents be later tendered in evidence on the hearing of the proceedings in which the parties are involved, or otherwise used in such a way on the hearing of those proceedings as would make it unfair to the other party not to treat the privilege as having been waived."

It is important to note that his decision was that a waiver of privilege was not to be imputed at the stage of disclosure of the report. The use of the report in the proceedings might later result in an imputed waiver on grounds of fairness: see 308E. In relation to the stage of disclosure of the report, the reasoning of Powell JA is similar to that of Olsson J. I have the same reservation about the apparently decisive effect given to the fact the disclosure was not voluntary.

Fitzgerald A-JA decided the case on yet another basis. He said that the report was inadmissible because the factual basis for the opinion that it expressed was not stated. The report being inadmissible, there was no risk of the plaintiff suffering any unfairness. Were Dr Tinning to be permitted to give evidence, the plaintiff would probably be permitted to re-open her case, and in other ways could seek the Court's protection against unfairness. That being so, there was no reason to impute a waiver of privilege as a matter of fairness: at 309-310.

A number of English decisions are considered by the Court of Appeal. I have considered the reasoning in those cases. The latest decision on point of which I am aware is Clough v Tameside and Glossop Health Authority [1998] 2 All ER 971. There Bracewell J took a fairly wide view that the privilege in material is waived if the material is supplied to an expert to consider as part of the background information in formulating the expert's opinion. Privilege would be waived even if the expert found the material unhelpful or irrelevant. It appears to me that the English cases proceed on a basis that differs from that determined by the High Court, and accordingly I put them to one side.

The question for me is whether a waiver of privilege in the two statements by Mrs Dyer is to be imputed. I have already identified the bases upon which that waiver might be imputed. The question for me is whether waiver should be imputed as a matter of fairness in the circumstances of the particular case. Fairness is to be understood in the sense explained by the High Court in Maurice and in Goldberg.

I am dealing with a situation which has undoubtedly occurred before, and which is likely to be repeated. It is the provision of privileged material to an expert for use in connection with the provision of a report by that expert, which material has been relied upon in part by that expert as a basis for the expert's opinion. The material that has been so relied upon is set out in the expert report delivered pursuant to r38.01(1). The party that has disclosed the report maintains that the report meets the requirement of r38.01(8) and on its face it appears to do so. The expert has not yet been called to give evidence.

As the ultimate question is one of fairness, it is not possible to lay down a universal rule that will determine whether or not waiver is to be imputed. Nevertheless, one would expect that usually the same conclusion would be reached in cases in which the circumstances are the same as the circumstances as summarised by me.

The judgments of the High Court in Goldberg indicate that an important matter is whether the disclosure of the privileged material is voluntary. The relevant disclosure here is the disclosure of the expert report, pursuant to the requirements of r38.01. The privileged material in question is disclosed as the result of the disclosure of the report that is required by r38.01.

However, because the ultimate issue is one of fairness, the question of whether the disclosure is voluntary or not cannot be decisive when considering whether a waiver of privilege is to be imputed. The fact that the disclosure is not voluntary is important, but not decisive.

When the solicitors for Mrs Dyer provided the material to the experts, they knew that any report from the experts would have to be disclosed. They knew that r38.01 entitled the plaintiff to particulars identifying any material from Mrs Dyer's statement upon which the expert based his opinion. Those particulars are to be taken to have been provided, counsel for the first defendant accepting that the report itself is in each case to be treated as containing the particulars. It is not a case in which the provision of adequate particulars of itself requires disclosure of the statements.

As the parts of Mrs Dyer's statements upon which the experts have based their opinion are particularised, I do not regard it as unfair that the defendant should be permitted to withhold from production the balance of Mrs Dyer's statements.

The plaintiff's solicitors should be able to prepare adequately for trial with the material that they have. They know the facts drawn from Mrs Dyer's statements that apparently have been relied upon by the experts. I can find no unfairness in connection with the preparation for trial. It is possible, as is contemplated in some of the decisions referred to, that at trial the position will change. It might emerge that material not particularised has been relied upon. For some other reason it may become necessary to consider the whole of Mrs Dyer's statement. But that is a matter to be dealt with by the trial judge. So fairness in the sense of preparation for trial does not require that a waiver of privilege be imputed.

This is not a case in which the first defendant appears to be using the expert reports to create an inaccurate perception of the privileged material. It is not a case in which the disclosure of one part of Mrs Dyer's statement requires the disclosure of other parts that have not been relied upon.

Looking at the matter more broadly, it does not appear to me that Mrs Dyer's solicitors have secured some advantage by the use of privileged material, which material they now seek to conceal. That was what happened in Goldberg. In the present case the only material important for the expert is the material relied upon by the expert as a basis for his opinion, and that material has been particularised.

In short, looking at the matter as a whole, and also bearing in mind the rights that r38.01 provides, and the limits upon those rights, it appears to me that there is no unfairness in permitting the situation to remain as it does after the proper application of r38.01 to the situation.

I respectfully disagree with the contrary conclusion of Judge Lunn in Kavanagh v Philpot and Flinders Medical Centre (1998) 197 LSJS 416. The fact that material provided to an expert might (and I emphasise might) become the subject of cross-examination at trial is not a reason to impute a waiver of privilege from its supply to the expert to consider in providing a report. In Kavanagh, the party to whom the report was disclosed had the protection conferred by r38.01. That being so, fairness did not require a waiver of privilege over material submitted to the expert, unless for some reason the rights conferred by r38.01 were, in the circumstances, an inadequate protection.

These days courts require and encourage the maximum disclosure of material before trial. It is in the interests of justice and efficiency that the trial should begin with each party having a full understanding of the case of the other party. But legal professional privilege remains as an important doctrine. A rule that privilege is waived if material is submitted to an expert for use in connection with an expert report, would be a very substantial intrusion on legal professional privilege. And such an intrusion would be for little gain, in terms of justice or efficiency, if particulars of any matter relied upon by the expert must be provided. The party to whom the report is disclosed will be able to identify privileged material upon which the expert has based the expert's opinion.

A distinction is to be drawn between imputing a waiver of privilege before trial and because of what happens at trial. A distinction must also be drawn between cases like the present, when the particulars required by r38.01(7) are provided, and cases in which they are not. When the required particulars are not provided, the relevant report is inadmissible, unless leave is obtained to call the report: r38.01(7).

A party to whom a report is disclosed under r38.01 is not entitled or limited, ordinarily, to a list of the material submitted to the expert in connection with the report. The entitlement is to particulars under r38.01(7). Of course, there may be cases in which the provision of a list of material submitted is the only way of providing the relevant particulars.

Finally, for what it is worth, I mention that some of the problems that have arisen in this case could be avoided if a solicitor instructing an expert does so by means of a letter of instructions that sets out the matters upon which the expert is asked to base the expert's opinion. The provision of a bundle of secondary material to an expert for consideration is no doubt convenient, but will often give rise to difficulty in determining the material upon which the expert has based the expert's opinion. If the matters to be so used are set out in the letter of instructions, that difficulty or doubt should not arise. If it does arise, the disclosure of the letter of instructions need not give rise to the disclosure of other privileged material.

For those reasons the appeal should be dismissed.