Information Note on the Court’s case-law 10

September 1999

Vernon v. the United Kingdom (dec.) - 38753/97

Decision 7.9.1999 [Section III]

Article 6

Civil proceedings

Article 6-1

Fair hearing

Order for disclosure of adverse expert report obtained by one party in personal injury proceedings: inadmissible

The applicant witnessed the drowning of his two children when the car in which they were travelling went i nto a river. He subsequently displayed symptoms of post traumatic stress disorder which seriously affected both his professional and personal life, and notably led to his divorce in 1993. He brought personal injury proceedings against the driver of the veh icle. The applicant’s expert witnesses gave evidence stating that the prognosis was quite pessimistic. In January 1995, the applicant was awarded damages of over GBP 1,300,000. In the meantime, he had applied for a residence order concerning his other chil dren. He asked the same experts to draft new reports on his mental state. The draft reports revealed that his mental condition had greatly improved. Following these proceedings, the defendants in the personal injury action appealed against the first judgme nt. Copies of the medical reports used in the family proceedings were anonymously sent to the defendants’ solicitors, who succeeded in having the case listed for re-hearing with a view to the examination of these reports. The applicant, who had been inform ed by his lawyer that these documents were subject to professional privilege and as such need not be disclosed, nonetheless waived the confidentiality privilege in the light of a recent House of Lords judgment, despite the fact that such disclosure was not in his interests. He claims that he was then obliged to call the expert as a witness. The Court of Appeal refused, however, to allow the applicant himself to give evidence on his current mental condition or to call another witness on this matter. The Cour t of Appeal, taking into consideration his substantial recovery as it transpired from the last medical reports, drastically reduced his award for personal injury to just over GBP 600,000.

Inadmissible under Article 6 § 1: The applicant had every opportunit y to explain the extent of his condition during his lengthy trial, and was represented by counsel who was able to make submissions to the Court of Appeal on his behalf. Moreover, the appeal proceedings were based on grounds of appeal and not on the re-hear ing of the case and, according to the rule of procedure, the taking of new evidence on points of facts was exceptional. Two expert witnesses gave evidence at appeal in support of the applicant’s arguments. The court justified its decision not to allow any further evidence to be called, notably by the wealth of evidence already provided by the applicant and the fact that it would delay the proceedings even more. Thus, the proceedings from trial to appeal did not deprive him of a fair and effective opportunit y to present his case: manifestly ill-founded.

With regard to the disclosure of the confidential medical reports from the family proceedings, which the applicant considered had compelled him to call the expert as a witness in the personal injury proceeding s, against his own interests, firstly regard must be had to the fact that it was him, following his lawyers’ advice, who waived privilege and obtained the requisite order to produce the document in the proceedings and secondly his decision to call the expe rt as a witness should be considered a purely tactical one, intended to serve his best interests. Furthermore, the fact that the new medical report contradicted the evidence presented in the personal injury proceedings by the same expert was not sufficient as such to render the whole proceedings unfair. Overall, no requirement, legal or tactical, imposed on him to produce the report in issue and call the expert as a witness, operated in a way that rendered the proceedings unfair. Therefore, there was no bas is for objecting on grounds of fairness to the approach adopted by the appeal court judges, who found that the rules governing disclosure should not be interpreted in such a way as to facilitate the running of contradictory claims in simultaneous proceedin gs:  manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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