Are Experts’ Joint Statements Privileged?
Legal professional privilege
In ruling whether a memorandum of agreement between experts should be disclosed, an adjudicator rehearsed the meaning of legal professional privilege as follows:
“Legal professional privilege is a right to maintain confidences between parties. When a document is protected by privilege, it means that it does not need to be disclosed. In the context of litigation and retaining expert witnesses, privilege will apply to confidential oral or written communications between the client and his legal advisers and the expert for the dominant purpose of obtaining or receiving advice for the purpose of existing or anticipated legal proceedings. ‘Dominant’ in this context means the ruling or prevailing purpose. The purpose or intended use for which a document is brought into existence will be a question of fact.”
Before adjudicating each party appointed an expert on building defects. Each expert separately inspected the building and each produced an expert’s report on the alleged building defects. The experts’ reports differed in the opinions given. Both experts were instructed to jointly inspect on a without prejudice basis and to endeavour to agree a joint statement of matters agreed / not agreed with reasons for disagreement. Accordingly, the experts jointly inspected the alleged building defects. They were substantially in agreement and recorded this in a joint statement.
All communication between the experts leading to their joint statement was headed ‘without prejudice’ and was not submitted to the adjudicator. The joint statement was not headed ‘without prejudiced’, was openly signed by both experts and submitted by one party to the adjudicator.
Cloaking the Experts' Memorandum of Agreement
The other party contended that, as its expert was instructed to communicate with the other expert on a without prejudice basis, the joint statement was privileged and ought not be considered by the adjudicator. The adjudicator concluded that all communications with and/or generated by this party’s expert should remain privileged and exempt from disclosure.
- The joint statement gave the experts’ agreed views on the alleged building defects.
- In doing so it superseded the individual experts’ reports.
- It was not drafted as advice to either party.
- Its dominant purpose was to narrow the issues in dispute to the benefit of both parties.
- If accepted into evidence it would have assisted the adjudicator.
- Reference to it in the adjudication would have clarified the building defects issues helping achieve a just and swift outcome.
Adjudication as Rough Justice
Adjudication is often described as rough justice. It is difficult to see how justice, no matter how rough, could be served by suppressing part of the expert evidence at the behest of one of the parties to the dispute. Without prejudice exchanges between experts are vital to forging agreements but this is worthless if the agreements so forged, once finalised and signed, remain privileged.