UK: Naming an expert – the risks

Last Updated: 4 October 2005
Article by Neil Beighton and Peggy Yip

Over the summer you may have missed our article in Insurance Day which discusses the Court of Appeal decision in Nicos Varnavas Hajigeorgiou v Vassos Michael Vasiliou and the new Protocol for the Instruction of Experts.

To view the article in full, please see below:

Expert evidence is often used in insurance and reinsurance litigation. The main purpose of expert evidence is to assist the Court to decide what a reasonable and prudent underwriter or broker would have done in the circumstances. As such, expert evidence may be a crucial factor to swing the Court's decision to one way or another. Therefore, it is not uncommon for a party to shop around for the right expert whose evidence will advance the party's case. A party may change their mind on whose reports they want to adduce as evidence as the litigation develops.

The Court of Appeal decision in Nicos Varnavas Hajigeorgiou v Vassos Michael Vasiliou [2005] EWCA Civ 236 is a reminder to litigators of the importance of choosing the right experts, and not putting forward their names until confident about what they will say. If an expert is named, but a party then tries to change to a different expert (which might arise because the first expert is unhelpful to the party's case), the Court may require the first expert's report to be disclosed as a condition of allowing the substitution – potentially disastrous if the reason for wanting to change is because the first expert has said something unhelpful. Litigators may thus be on much safer ground just identifying a discipline rather than an individual expert.

In Hajigeorgiou, the claimant sought damages for breach of the defendant's covenant of quiet enjoyment in a lease of premises, which were intended to be used as a restaurant. The defendant's solicitor sought the Court's direction to adduce expert evidence on the value of the restaurant and what profit the restaurant would have made if trading had not been restricted as a result of the defendant's breach of covenant. His application was supported by a witness statement to which a restaurant valuation expert, Mr Watson, whose CV was exhibited. At the end of the case management conference, one of the terms incorporated in the court order was as follows:

"Both parties do have permission, if so advised, to instruct one expert each in the specialism of restaurant valuation and profitability."

After Mr Watson inspected the premises and prepared his evidence, the defendant' solicitor wanted to instruct another expert, Mr Negus. The claimant's solicitor refused to provide access to the claimant's premises for inspection by Mr Negus. In the County Court, Judge Cowell held that the defendant needed permission to rely on the report of Mr Negus. Having held that the permission was required, he held that he would give permission to rely on the evidence of Mr Negus, but only on condition that the report of Mr Watson was disclosed to the claimant. The defendant appealed against this decision and the Court of Appeal allowed the appeal.

Two issues were before the Court of Appeal. First, whether permission was required to rely on the report of Mr Negus. Second, if permission was required, whether it was correct to give the permission to rely on the evidence of Mr Negus only on the condition that the report of Mr Watson was disclosed to the claimant.

As regards the issue of permission, the Court of Appeal held that the order above did not of itself require the defendant to obtain the permission of the Court to rely on the evidence of Mr Negus. The order plainly and unequivocally identifies the experts only by their field of expertise rather than a named individual expert. The fact that details of Mr Watson's expertise and charge-out rates were stated in the defendant's solicitor's witness statement could not be taken to oblige the defendant to rely only on the evidence of Mr Watson.

The Court of Appeal also considered the Court's power under the Civil Procedure Rules 35.4. Civil Procedure Rules 35.4 governs the Court's power to restrict expert evidence but not the instruction of experts. The rules state that no party may call or put in evidence an experts report without the Court's permission. They do not empower the Court to give permission for the instruction of experts. The Court of Appeal held that the phrase "permission, if so advised, to instruct one expert" in the above order should be construed as meaning "permission, if so advised, to call and put in evidence a report from one expert". It follows that the fact that Mr Watson had been instructed did not of itself require the defendant to seek the permission of the Court to instruct Mr Negus.

It is interesting to note that the Court of Appeal made an obiter comment that if the defendant did need the Court's permission to rely on the evidence of Mr Negus, Judge Cowell was right to impose the condition that the report of Mr Watson be disclosed. The imposing of the condition is a way by which the Court uses its power to prevent expert shopping. In fact, the Court of Appeal is even prepared to go further by extending the condition from disclosure of the first expert's final report only to any reports containing the substance of the first expert's opinion. The Court's permission to rely on the evidence of Mr Negus would be required if the order had named Mr Watson as an expert. It will follow that the Court would likely to grant permission to rely on the evidence of Mr Negus on the condition that all Mr Watson's reports containing the substance of his opinion be disclosed to the claimant.

Any party involved in instructing experts should be aware that the Civil Justice Council launched a new Protocol for the Instruction of Experts to give evidence in civil claims in June 2005, shortly after the handing down of the Court of Appeal's decision. The Protocol will take effect from 5 September 2005. The purpose of the Protocol is to offer guidance to experts and to those instructing them in the interpretation of, and compliance with, part 35 of the Civil Procedure Rules and to further the objectives of the Civil Procedure Rule generally. In the Protocol, it is stated that before experts are formally instructed or the court's permission to appoint named experts is sought, various prerequisites should be established. For example, the experts should have the appropriate expertise and experience. Case Management Information Sheets in certain Courts already ask for the names of experts but "not yet known" is a common answer. The Protocol may encourage the Courts to press for experts to be named earlier rather than later.

In litigation, it is not uncommon for parties to shop around for experts. Sometimes, the first expert approached is unhelpful, and even positively adverse to the party's case. Both the Court of Appeal's decision and the Protocol for the Instructions of Experts highlight the importance of selecting the right expert at an early stage, ideally prior to the first case management conference. This is another example of the trend towards "front-loading" of litigation. Parties are increasingly required to have undertaken all the necessary preparatory steps at an early stage, rather than waiting to see how the litigation develops.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 03/10/2005.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.