Beware when changing experts!

In Coyne v Morgan and Another [2016] B.L.R. 491,England’s Technology and Construction Court had to consider whether when a party wishes to change expert, it should be made a condition of such change that the party disclose his original expert’s report. Such condition is commonly imposed where the party seeking to change expert is “expert shopping” (i.e. seeking to reject the original expert’s report because it is unfavourable). Here, however, it was the expert who had decided that he could no longer continue to act as expert in the case. The Court held that “expert shopping” did not have to be established before the Court could impose a condition that the original expert report be disclosed before a party be permitted to adduce evidence of a replacement expert. 

Background

The Claimant (Mr Coyne) had engaged the Defendants (Hillfield) to carry out building works at his property. Mr Coyne issued proceedings against Hillfield alleging defective work. Before Hillfield served their defence and counterclaim, they instructed a structural engineer as expert (Expert A). Expert A met with Mr Coyne’s expert and prepared a draft report for Hillfield. Subsequently, Expert A informed Hillfield that he did not wish to continue as expert in the case, as he felt that Hillfield had lost confidence in him. Hillfield therefore had to instruct an alternative expert, Expert B.

Issue

The issue to be decided by the Court was whether disclosure of Expert A’s draft report should be a condition of granting Hillfield permission to adduce expert evidence from Expert B. Mr Coyne argued that requiring a party to disclose a report produced by a previously instructed expert is not only confined to cases of “expert shopping”, but applies whenever a party changes expert. Hillfield argued that the Court should only impose such condition where there has been “expert shopping”, which was not the case here.

Applicable Principles

The Court derived the following principles from previous case law.

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;
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;
5. The court will require strong evidence of expert shopping before imposing a term that a party discloses other forms of documents, other than the report of the original expert (such as attendance notes and memoranda made by a party's solicitor of his discussions with Expert A) as a condition of giving permission to rely on a replacement expert.

Court’s Decision

Although there was no evidence of expert shopping in this case, the Court said that there were two factors which indicated that the Court should impose a condition that Hillfield disclose Expert A’s draft report before being permitted to rely on Expert B’s report, namely: 

• Expert A had already produced a draft report in the context of proceedings and proceedings had been issued prior to production of the report; and

• Expert A had already discussed the expert issues in the case and subsequently attended a joint inspection with Mr Coyne’s expert of like discipline.

The Court said that either of the above factors indicated that the Court should impose such a condition, but the two factors together made it even more so. Accordingly, the Court ordered that as a condition of being permitted to adduce expert evidence from Expert B, Hillfield had to disclose the draft report of Expert A. However, any reference to or record of any without prejudice discussions between Expert A and Mr Coyne’s expert or any other person acting on behalf of Mr Coyne was to be redacted from the draft report before it was disclosed.

Since the Court found no strong evidence of expert shopping, it did not require Hillfield to disclose any attendance notes, memoranda or any other documents recording the substance of any conversations between Expert A and Hillfield’s solicitors.

Comment

This case is a reminder of the importance of choosing the right expert, given that once a party formally engages an expert in a case, the Court has power to require disclosure of his report (or draft report) in the event that the party seeks to replace him with another expert. Such disclosure is not limited to where such party is found to be expert shopping, but applies generally and depends upon the facts of the particular case and even where (as in this case) it is the expert who no longer wishes to be engaged.

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