Cases - Kenning v Eve Construction Ltd

Record details

Name

Kenning v Eve Construction Ltd

Date

[1989]

Citation

1 WLR 1189, QBD

Keywords

Expert witness

Summary

A personal injury case was brought against the defendant employers, who commissioned an engineer as expert. The engineer's report, dealing with the allegations of negligence, was accompanied by a letter, suggesting ways in which the defendants might have been negligent. The letter was mistakenly sent to the claimant's solicitors, who sought leave to amend the pleadings to include their new findings. The defendants argued that the claimant should be restrained from using the letter. The court held that, although the expert's letter was privileged, the whole substance of his evidence would have to be disclosed if the defendants decided to call him, which was their choice.

'If an expert witness is approached by a solicitor on behalf of his client and overall the expert's view is unfavourable to the merits of the case that he is having to consider, the solicitor has a choice. He can either call him (in which case, as it seems to me, he ought to be prepared to disclose his evidence with both the favourable and unfavourable parts contained) or he does not call him and seeks another expert's opinion which may be more favourable.'

Further:

'... the solicitor's choice is simple. He must make up his mind whether he wishes to rely upon that expert, having balanced the good parts of the report against the bad parts. If he decides that on balance the expert if worth calling, then he must call him on the basis of all the evidence that he can give, not merely the evidence that he can give under examination-in-chief, taking the good with the bad together'.