In Hajigeorgiou v Vasiliou , the Court of Appeal
expressed the view that, where a party wished to switch experts, it
was reasonable to infer that the first expert's "interim
draft report" contained the substance of that expert's
opinion and if permission was needed to rely on the evidence of the
second expert, a pre-condition to the granting of such permission
would be the disclosure of that draft interim report.
That view was aimed at preventing "expert shopping"
(ie where a party changes experts after receiving an unfavourable
report from the expert which it first instructed, or losing
confidence in that expert). Of issue in this case is whether there
is any general principle that the (draft) report of the first
expert must be disclosed in all circumstances where a party changes
experts, and even where there has been no expert shopping. (Here,
the expert had decided that he no longer wished to act for the
defendants, even though the defendants wanted him to continue
acting for them).
The judge concluded that prior caselaw has not established that
"expert shopping" must be proven before the court will
exercise its general power or discretion to impose a condition of
disclosing the first expert's report, when giving permission to
rely on a second replacement expert. In this case, there were two
factors which indicated that the court should order disclosure of
the first expert's draft report (and either on its own was
sufficient to impose the condition):
1) The first expert had already produced a draft report in the
context of proceedings previously issued; and
2) the first expert had discussed the expert issues in the case
and subsequently met with the other side's expert.
The judge found no evidence of expert shopping in this case. Any
reference to WP discussions between the first expert and the other
side's expert was to be redacted from the draft report:
"what is to be disclosed is the substance of the [first
expert's] opinion on the expert issues in the case as set out
in such draft report". The defendant was also not required to
disclose attendance notes recording the substance of conversations
between the expert and the instructing solicitors.
In the recent decision in Joyce Whitfield v Revenue & Customs Commissioners  UKFTT 685 (TC) the Tribunal considered that inflexible and disproportionate behaviour by a party's legal representative...
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