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There is plainly a respectable case for contending that such a rule would be valid or
could be drawn up in terms aimed at ensuring validity. This accords with the view
expressed in the textbook Human Rights and Civil Practice, discussing the impact of
Articles 6 and 8 of the ECHR on CPR 35.10, as follows :-
"CPR 35.10(3) provides that an expert's report must state the substance of all material
instructions, whether written or oral, on the basis of which the report was written.
CPR35.10(4) provides that these instructions ‘shall not be privileged against disclosure'. The
court will not, however, order disclosure of specific documents or cross-examination of the
expert in relation to his instructions, unless it is satisfied that there are reasonable grounds to
consider the statement of instructions to be inaccurate or incomplete. The purpose of the
provision is to avoid pressure being put on an expert to come to or change a specific opinion
leading to suppression of material opinions or material which is adverse to the party
instructing that expert. It is intended that this provision will bolster the independence of the
expert, who might otherwise be inclined to modify his opinion in order to assist the party who
is actually paying him. This is clearly a legitimate reason for the rule that increases the
fairness to the other parties to the litigation and does not affect lawyer-client confidentiality,
though it does narrow the scope of litigation privilege to some extent. Provided that CPR
35.10(4) is interpreted narrowly and privilege is only overridden where there are clearly
reasonable grounds to suppose that the statement of instructions is inaccurate or incomplete,
it is unlikely that the rule will violate the Convention."
On the other hand, the original CPR 48.7(3) which gave the court express power,
when making wasted costs orders to "direct that privileged orders are to be disclosed
to the court, and if the court so directs, to the other party to the application for an
order" was held
to contravene the ECHR provisions and was subsequently revoked.
One might add that in relation to civil proceedings, the constitutional protection
afforded to confidential legal advice by BL 35 is rather more specific than the general
rights to a fair trial and privacy conferred by ECHR 6 and ECHR 8. Even accepting
(for the reasons which attracted those in support of Proposal 39(d)) that such a rule
pursues a legitimate purpose, there would appear to be room for argument as to
whether such a measure is reasonably proportionate to that purpose and as to the
extent of impairment to the essence of the right to confidential legal advice.
The Working Party does not seek to resolve those questions. However, the arguable
constitutionality of the proposed rule, taken together with the points made in
opposition to such a rule have led the Working Party to conclude that Proposal 39(d)
should not be adopted.
Notes
LAM, §11.72.
General Mediterranean Holdings v Patel [2001] WLR 272.
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