Disclosure and documents referenced in expert reports: a level playing field?

It is well-established that parties have the ability to seek specific disclosure of documents not already provided by way of disclosure but mentioned in a statement of case, witness statement or summary, affidavit or an expert report. This is set out in CPR 31.14, and has been preserved in the Disclosure Pilot Scheme (DPS) by virtue of paragraph 21 of Practice Direction (PD) 51U. The High Court’s decision in Zverev v Ace Group International Ltd sheds some light (and arguably casts some doubt) on the scope of these provisions, while highlighting a potential alternative route for parties under CPR 32.1 and the courts’ general power to control evidence.

Facts

The claimant, Alexander Zverev, a highly ranked professional tennis player, brought a claim against his former agent, Ace International Limited, following their refusal to allow him to terminate his contract with them. The claimant had entered into the contract when he was 15 years old and contended that, because of its duration and terms, it was unenforceable on grounds of restraint of trade. He sought a declaration to this effect.

The defendant served an expert report on the duration and other terms of contracts for professional male tennis players and youth players. The report referred to and attached, in an appendix, redacted copies of five representation contracts of other comparable tennis players. The identity of these players, their ranking, agency and contract date had all been redacted. By reason of the pronoun used in two of the contracts, the claimant established that these particular contracts related to female players.

The claimant requested to see unredacted copies of the contracts so that he could assess the comparators and ascertain whether the assertions made by the expert in his report were sound. In order to facilitate this, the claimant suggested a confidentiality ring consisting only of the legal representatives.

The defendant declined.

Specific disclosure

The claimant applied for an order for specific disclosure relying on PD 51U, paragraph 21.1, which provides as follows:

“21.1 A party may at any time request a copy of a document which has not already been provided by way of disclosure but it is mentioned in:

(..)

(5) an expert’s report”

In the alternative, the claimant relied upon the court’s case management powers contained in CPR 32.1, which provides (at paragraph (1)):

“(1) The court may control the evidence by giving directions as to –

(a) the issues on which it requires evidence;

(b) the nature of the evidence which it requires to decide those issues; and

(c) the way in which the evidence is to be placed before the court.”

And then under paragraph (2):

“The court may use its power under this rule to exclude evidence that would otherwise be admissible.”

The defendant argued, amongst other things, that the court had no jurisdiction under PD 51U because it was an application against a non-party, and an expert was not an agent of the party instructing them. They further argued that it would be inappropriate to use the court’s case management powers to force the expert to disclose the contracts.

Decision

Andrew Hochhauser QC, sitting as a Deputy Judge, held that in this case, it was appropriate to exercise the case management powers under CPR 32.1, despite the fact that the claimant’s application had been based primarily upon PD 51U, paragraph 21.1(5).

He ruled that, to the extent that either expert wished to rely upon the contracts mentioned in their reports, they had to provide them in an unredacted form to a confidentiality club of legal representatives.

The judge understood the claimant’s argument that without access to the full contracts revealing the name of the player, the agency, the date of the contract and the ranking, it would be difficult to challenge properly the fact that they may not be true comparators. In addition, it would assist the court for that to be the subject of examination when deciding which of the experts were to be preferred.

Further, he held that the expert was not able, on the one hand, to rely upon certain parts of the contract and, on the other hand, to keep back that part which had already been shown to the defendant’s lawyers. By releasing the contracts in a limited fashion, to the lawyers only, it allowed for there to be an even playing field.

While he saw “some force” in the argument made by the defendant as to the court’s jurisdiction under PD 51U, the judge refrained from deciding on this point and opted to accept the alternative jurisdictional basis of the claimant’s application, namely, CPR 32.1(1).

Comment

It is interesting to note that, despite the case appearing to fall squarely within the provisions of PD 51U, the court chose to use its case management powers to control evidence. Paragraph 21 is couched in wide terms and is expressly subject only to considerations of reasonableness and proportionality. Yet the court’s decision highlights a point that may not be immediately apparent to practitioners: that is, a party’s ability to obtain copies of documents may be limited only to those within the control of the litigating party, not simply any document referred to by the expert.

The court’s decision also highlights that, when making an application for specific disclosure, whether from third parties or not, the parties need to think carefully about the basis upon which they rely to attain successfully the documentation they are after. This case illustrates that it may be prudent to make an application pursuant to a specific disclosure provision, as well as under the court’s powers to control evidence to ensure all is done to secure the disclosure order sought.

This article was first published on Practical Law.