The High Court recently overturned the decision of a Master who refused to allow a party to rely on a new expert witness where their former expert had declined to act. (Wedlake Bell acted for the successful Appellants.)
The dispute concerned an overage provision in an agreement for the sale of land, which enabled the purchaser to elect to have the open market value (OMV) of land determined by a tender process, with the purchaser having the option to match the highest tender. The Appellants claimed that they lost the opportunity of having the OMV determined by more robust means due to the failure in the drafting/advising of the agreement by the Respondents.
To determine the true OMV that should have been achieved, the Appellant's relied upon an expert, who opined that the Appellants incurred a loss of over £11m. In accordance with the pre action protocol, the Appellants provided the Respondents with details of the expert's view. Upon consideration of the Respondents' experts' views, the Appellant's expert later submitted a supplemental report which considered the Appellants loss to be less than the initial £11m figure due to the purchaser bearing the costs of the roof tax.
The claim was issued in 2008 and prior to the case management conference in 2013, the Appellants identified in their allocation questionnaire that they would rely on the expert evidence of a different expert. The Respondents questioned the change. The Appellants confirmed that the change was due to the former expert declining to act and the Appellants were entitled to call an expert of their choosing without a waiver of privilege or liability for costs thrown away as a result of the change. At the case management conference the Master agreed with the Respondents' submissions that the Appellants had advanced no good reason for the change in expert and therefore that, notwithstanding that the expert had declined to act, the Appellants must rely on the evidence of the former expert.
On appeal, the Appellants submitted (inter alia) that they were entitled to call an expert of their choosing and that the Master did not have the power under Civil Procedure Rule (CPR) 35.4(3) to make the order he did. The Appeal was granted and it was held that:
- "Expert shopping" is a practice that courts will seek to outlaw.
- The principles raised by the authorities have to be applied in context. This case was not straightforward. There were differing views on quantum and so it was necessary to consider the effect of the Master's decision on the conduct of the case (i.e. the Appellants would have to witness summons an unwilling expert witness compared to calling an alternative expert and the Court deciding on competing evidence). The Master had erred by not referring to the need to consider the case justly nor to the overriding objective.
- CPR 35.4 gives the Court discretion to permit or not permit evidence. Whilst the Court cannot interfere in a party's choice of expert, where an expert had been instructed through the pre-action stage and has played a significant role, that is an important factor for the Court to consider in exercising its discretion. The threshold for a party to cross before a change in expert can occur varies accordingly to the circumstances. The Appellant's expert declining to continue to act was a good enough reason.
- The change in expert did not require a waiver of privilege in respect of correspondence between the former expert and the Appellant's legal team. That said costs had been thrown away as a result of the change and the Appellants were required to pay half of the Respondents' costs thrown away, with the other half being the subject of detailed assessment.
Please note permission to appeal the High Court's decision in this case has been requested.
Practical points
- Notwithstanding the decision in this case, be careful when choosing an expert, the Courts will not lightly entertain a change to an expert where one has previously had significant involvement. Get it right first time.
- If the Court does grant a change in expert:
- Be aware that there may be a liability to pay the opposing party's costs thrown away as a result of the change; and
- Be aware that arguments may be raised as to a waiver of privilege of legal correspondence with the former expert.
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