Party permitted to change experts on condition it disclosed previous expert’s notes setting out substance of views

The Technology and Construction Court has granted a claimant permission to adduce evidence from a new expert, after it became dissatisfied with its original expert's ability to express his views clearly. However, permission was granted subject to the condition that the claimant disclose certain documents in which the original expert had recorded his views (in addition to the expert's draft report, and the instructions to both experts, which the claimant had already disclosed): Allen Tod Architecture Ltd (in liquidation) v Capita Property and Infrastructure Ltd [2016] EWHC 2171 (TCC).

The decision is another reminder that, where a party wishes to change experts, the court is likely to grant permission (if at all) on condition that documents recording the original expert's opinion are disclosed – even if the case is not one of "expert shopping" in the sense of shopping around for a more favourable expert opinion. Such a condition may go beyond disclosure of the original expert's final, signed report, or even a developed draft, to include any document in which the expert's views are recorded.

Another recent decision of the same judge (Coyne v Morgan and Harrison, considered here) suggests that a party will not be required to disclose their solicitors' attendance notes of meetings with the first expert (as opposed to documents prepared by the expert himself/herself) unless it is a "strong case of expert shopping". In the present case, however, it seems there was no attempt to obtain disclosure of solicitors' attendance notes.

Background

The case concerned a professional negligence claim against a structural engineer.

The claimant instructed Expert A in September 2014 after making enquiries as to his expertise and availability. In December 2014, Expert A provided the claimant with certain notes responding to questions that had been put to him by counsel. In spring/summer 2015, the claimant's solicitors pressed Expert A for his written report but it was not forthcoming, though Expert A provided a "summary of his views" or "preliminary report" on 6 July 2015.

On 12 February 2016, Expert A produced a draft report, following which the claimant decided to change experts on the basis that he was "unable to properly manage the documents in the case and express his views with the clarity that would assist the court". However, while that decision was being made, Expert A provided his views on certain matters in relation to a mediation with the defendant.

The claimant instructed a new expert, Prof Robers, in April 2016 and applied for permission to call Prof Roberts at trial (scheduled for October 2016). That application was heard at the pre-trial review on 29 July.

The defendant applied for specific disclosure of the claimant's letters of instruction to both Expert A and Prof Roberts, as well as any report, document and/or correspondence in which the substance of Expert A's opinion was set out, whether in draft or final form. The claimant provided the letters of instruction and the draft report dated 12 February 2016 but declined to disclose any further material. Accordingly, the application proceeded in respect of: the notes provided in December 2014; the preliminary report provided in July 2015; and (if they were provided in writing) the expert's views provided in relation to the mediation.

Decision

The court (HHJ David Grant) granted permission to call Prof Roberts subject to the condition that the categories of documents sought by the defendant were disclosed.

Although the order for directions gave the parties permission to adduce expert evidence by reference to discipline, rather than named experts, it also provided that permission had to be sought in order to call expert evidence orally at trial. It was common ground that, in granting such permission, the court had power to impose conditions.

The judge referred to his own decision in Coyne for a summary of the applicable principles (see our blog post on the decision, linked above).

He dismissed the claimant's argument based on the privileged nature of the documents sought. It was clear from the authorities that, in imposing a condition requiring disclosure of a previous, privileged, report, the court was not abrogating or overriding privilege. It was merely saying that, if a party sought the court's permission to rely on a substitute expert, it would have to waive privilege in the first expert's report as the price of obtaining that permission. In this regard, there was no difference of substance between disclosure of a previous final, signed report and disclosure of a draft report or other document setting out the expert's views.

The judge concluded that this was not a case of expert shopping or, if it was, it was only so "to a faint degree". However, even in such a case, the court could still direct disclosure of material produced by the first expert expressing his or her opinion on the issues in the case, as a condition of permitting reliance on a new expert.

In the present case, the evidence indicated that Expert A's notes and preliminary report were documents in which he expressed his opinion on the issues in the case, and so it was reasonable to order their disclosure. To the extent that Expert A's views in relation to the mediation were provided in a document, the same applied.

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