More on the consequences of changing experts

In the recent case of Allen Todd Architecture Ltd v Capita Property & Infrastructure Ltd [2016] EWHC 2171 the claimant wished to substitute a new expert structural engineer, having lost confidence in the first such expert as a result of delays in production of the report. The claimant had disclosed to the defendant the letters of instruction and the original expert’s report but the defendant wanted the letter of instruction to the new expert and any report, document or correspondence with the original expert setting out that expert’s opinion, whether in draft or final form.

Although these additional documents are privileged, and although the judge did not regard the case of one of ‘expert shopping’ on the part of the claimant, the judge ordered disclosure of documents, such as draft and provisional reports and correspondence, containing the original expert’s opinion as a condition of granting permission to rely on the substitute expert.

From the authorities the judge derived the following principles:

(1)         The court has a wide and general power to exercise its discretion whether to impose terms when granting permission to a party to adduce expert opinion evidence: that is consistent with both the general way in which CPR rule 35.4 (1) is expressed, and the wide and general nature of the court’s case management powers, in particular those set out in CPR rules 3.1 (2) (m) and 3.1 (3) (a).

(2)         In exercising that power or discretion, the court may give permission for a party to rely on a second replacement expert, but such power or discretion is usually exercised on condition that the report of the first expert is disclosed.

(3)           Once the parties have engaged in a relevant pre-action protocol process, and an expert has prepared a report in the context of such process, that expert then owes a duty to the Court irrespective of his instruction by one of the parties, and accordingly there is no justification for not disclosing such a report.

(4)         While the court discourages the practice of ‘expert shopping’, the court’s power to exercise its discretion whether to impose terms when giving permission to a party to adduce expert opinion evidence arises irrespective of the occurrence of any ‘expert shopping’. It is a power to be exercised reasonably on a case-by-case basis, in each case having regard to all the circumstances of that particular case.  Where an expert had produced a report in the course or context of a relevant pre-action protocol process this was a critical or decisive factor, rather than there having been any instance of ‘expert shopping’.

(5)         The court will require strong evidence of ‘expert shopping’ before imposing a term that a party discloses other forms of document than the report of the original expert such as attendance notes and memoranda made by a party’s solicitor of his or her discussions with the original expert) as a condition of giving permission to rely on a substitute expert.

The judge went on to conclude that there was no difference in imposing a condition of disclosure of the previous Part 35 compliant report before granting permission for a substitute expert and requiring disclosure of any earlier draft of provisional report or other document produced by the original expert and containing the substance of the expert’s opinion on issues in the case.

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