by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project
~ 2018 Updated Edition ~
24.1 Questions that require expert evidence range from those specific to the appellant's circumstances to those which arise in similar form in many appeals. Expert reports may be client based, issue based, or a mixture of the two. In the past, representatives have regularly submitted reports that were prepared for previous cases because the issue has arisen again in the present case. The practice has been discouraged by the Tribunal.
24.2 The Tribunal's concern is not only about confidentiality (it goes without saying that an expert report should not be reused without removing any text which would identify the original client). In Slimani v SSHD (01/TH/00092), it said that:
[T]oo often reports prepared for a specific case are relied on in other cases in which appellants from the same country are represented by the same advisers. This should not happen unless the report is stated to be general and the author is asked to confirm that he is content for it to be relied on. Apart from anything else, conditions change and views which may have been valid when the report was written might not be 12 months later.
The Scottish Court of Session has recently endorsed these observations. In XL v SSHD  CSOH 41, Lord Mulholland added that:
… it is discourteous for a report to be used without the authority and knowledge of the author and person to whom it related. The report could contain sensitive personal information which is put into a public court without their knowledge. The report may require to be redacted of sensitive information and the user would not know what should be redacted. The user is acting on the interests of their client and not the author of the report or the individual to whom it relates. … Further, there are issues of copyright and payment and the danger for the author that a report which is significantly out of date may express wrong conclusions and views, on current information. This could result in official or judicial criticism which could affect the author's professional reputation. Further, no information was given to the respondent about what, if anything, the tribunal made of Dr. Sheehan's report. This omission still persisted when the case called before me. As already commented on, the report was almost three years old when considered by the respondent and it is clear from the respondent's decision letter that there was more up to date objective information about this issue.
24.3 In Bouglouf v SSHD (01/TH/02933), it said that:
The tribunal has in other cases deprecated the practice of using reports prepared for a particular case in others, unless the author is prepared to say that he or she agrees. It is said that it is too expensive to get a fresh report in every case. That is no excuse, particularly as it could hardly be expensive to obtain the agreement of the author that it can be used because it is of general application. This practice must cease and adjudicators and the tribunal will be entitled to attach very little if any weight to such reports.
24.4 Expert reports are sometimes recycled for perfectly understandable reasons. One can sympathise with the dilemma faced by counsel who is briefed the night before a hearing and has a recent expert report from another case which appears to answer a similar allegation being made in the present case. It may be impossible even to contact the expert in the time available, yet it is obviously of great concern if this information cannot be conveyed so that the allegation goes unanswered.
24.5 Unless you are in such an unhappy position, you should try to obtain a report from the particular expert which addresses the present case. This always carries more weight and enables you to comply with the requirements of the Practice Directions in relation to expert evidence. If the expert is unable to provide another report, you may ask him to confirm that the previous report is of general application and if possible reproduce it as a general comment. You must at least request his permission to submit an anonymised version of the previous report. His consent cannot be assumed. Some experts now incorporate a standard stipulation into their reports to the effect that they cannot be reused without permission, and are reluctant to give such permission in light of previous adverse comments by the Tribunal.
24.6 If you are in the unhappy position of being instructed the night before, you should still attempt to contact the expert in order to explain the problem and ask whether the expert will consent to his report being disclosed, at least in order to support an adjournment application to obtain a case specific report. He may consent on the understanding that it is made clear that he has not seen the papers in the present case. However, the expert may not be contactable and your adjournment application may be refused. If the report stipulates that it is not to be reused, that must be respected. Otherwise, you may feel you have no choice but to offer an anonymised version of the original report if the Tribunal is prepared to consider it.
24.7 Where an expert can give valuable evidence upon a recurring issue but is not able to comment upon each individual appeal, you may consider obtaining an issue-based report from him which can be referred to in each case without specific authorisation. Paying for such a report may be more problematic than a report which is attributable to an individual case but it may be appropriate to approach the Legal Aid Agency (LAA) if the issue arises in several publicly funded cases.