The practice of expert shopping – which broadly speaking is engaging different experts until finding one whose opinion suits your case – is actively discouraged by the Courts and a party who changes experts during the course of court proceedings may be required to disclose its previous expert's report. In some cases, the Court may also order disclosure of other, usually privileged, documents recording the previous expert's advice; such as attendance notes prepared by solicitors. Disclosure of these documents may be unhelpful if those experts expressed opinions that are adverse to the disclosing party's case.
In the recent TCC case of University of Manchester (“UoM”) –v- (1) John Mcaslan & Partners Limited (“JMP”) and (2) Laing O'Rourke Construction (“LOR”) and Gifford Global Limited (“Gifford”), Roger Ter Haar KC was tasked with deciding a dispute as to whether there should be conditions attached to the Court's permission for UoM to adduce expert evidence.
LOR accused UoM of expert shopping. LOR therefore asked the Court to decide that permission for UoM to adduce expert evidence be conditional on UoM providing a very broad range of disclosure of documents containing the opinions of UoM's previous experts.
This case is an interesting example of the Court deciding not to attach any additional conditions when giving its permission to adduce expert evidence, even though previous experts had been engaged.
The case involved UoM's claim against JPM and LOR for breaches of contract in relation to the design and construction of three large connected buildings at the University of Manchester; referred to as Blocks 1, 2 and 3.
Block 1 comprises a rectangular brick-clad service tower attached to the northern end of a zinc-clad drum-shaped building. Blocks 2 and 3 each have central full height zinc clad bays dividing the brickwork façade in two, and both have curtain walling at ground floor level. The eastern and western elevations are also brick-clad and are punctuated by a regular arrangement of storey-height inset windows.
All three buildings are connected by curtain walling clad circulation links.
UoM's claims concern alleged defects in the design of the Blocks, in particular design for the movement joints in the brickwork cladding, together with defective construction of the brickwork cladding and associated works. UoM argues that significant remedial works are necessary, including the wholesale replacement of the outer brick skin on all three blocks, alleging total losses to date of circa £10.2m.
Permission to adduce expert evidence
UoM sought permission to adduce expert evidence from a structural engineer on the remedial scheme. On the basis that UoM had already instructed three other experts, LOR argued that UoM had engaged in expert shopping by changing its expert during the course of proceedings, and so permission from the Court to rely on new expert evidence should be made conditional on UoM disclosing:
- Any reports, letters, e-mails notes or other documents provided by UoM's former experts in relation to the dispute or on the issue of the remedial scheme; and
- Any attendance notes produced by UoM's representatives recording meetings, telephone calls and other discussions with UoM's former experts evidencing their opinions on the remedial scheme.
Expert shopping: the authorities
The case of Vasilou v Haligeorgiou establishes the court's usual position on expert shopping. Here, Dyson LJ held that:
“Expert shopping is undesirable and, wherever possible, the court will use its powers to prevent it. It needs to be emphasised that, if a party needs the permission of the court to rely on expert witness B in place of expert witness A, the Court has the power to give permission on condition that A's report is disclosed, and that such a condition will usually be imposed”.
In considering LOR's arguments, the Court found the following points were important in deciding whether to require disclosure of documents relating to previous experts:
- The Court's discretion to require disclosure of a report from an expert, which would otherwise be privileged, applies when a party wishes to change expert so long as that first expert has provided a report “for the purpose of proceedings”. The significance of that purpose being that the expert owes a duty to the Court in expressing his or her opinions.
- The Court has a discretion whether to require disclosure in such a situation, but that discretion should normally be exercised in favour of requiring disclosure, but with any other procedural discretion there can be departures from the norm if circumstances render that just.
- There are two underlying reasons for this practice: firstly to guard against expert shopping; and, secondly, to ensure that the court has relevant material before it.
With regards to solicitors being required to disclose attendance notes of conversations with expert's containing their opinions, the court considered the case of BMG (Mansfield) Ltd v Galliford Try Construction Ltd.
In that case, Edwards-Stuarts J regarded the disclosure of solicitors' attendance notes of conversations with experts to be problematic for a number of reasons.
Firstly, they may not record the expert's actual words; but rather the substance of what the solicitor understood the expert to say. The two may not be the same!
Secondly, the notes may well contain material that is not expert opinion. Whilst this difficulty may be overcome by redaction, very often the disclosed passages have to be read in the context of the remainder of the attendance note for the disclosed passages to be understood. Another difficulty is that the solicitor may need to check with the expert that what they have reported him or her as saying in a particular attendance note is correct. This could prove difficult if the expert refuses to co-operate and the costs of this exercise are likely to prove to be disproportionate.
Edwards-Stuarts J ultimately concluded that:
“[T]here would have to be a very strong case to justify a condition that such solicitors' attendance notes should be disclosed in addition to any reports or draft reports by the expert.”
Did UoM engage in expert shopping?
LOR alleged that UoM had first engaged Dr Garvin but went on to appoint Dr Casson and Mr Conisbee without providing any explanation for doing so. LOR further alleged that UoM changed Mr Conisbee for his colleague Mr Stagg because Mr Conisbee was advocating a repair of the defects as opposed to a replacement.
In a full and frank letter dated 13 September 2022, UoM's solicitor explained the position regarding three different experts; refuting the allegations of expert shopping.
UoM's solicitor explained that all parties had expressed concern over Dr Garvin's investigations and felt that further information was necessary before reaching a view on the cause of the problems and any potential repair scheme. The parties then discussed jointly instructing Dr Casson, but not all parties agreed to his appointment so UoM instructed him on a unilateral basis. Crucially, Dr Casson was not instructed as an architect / structural engineer and did not comment on how to remedy the defects.
UoM's solicitor further stated that Mr Conisbee did not advocate a repair scheme – his view was that further investigatory works were required in order to understand the extent of the remedial work required. UoM's solicitor further stated that Mr Conisbee was unable to continue in his role as an expert due to ill-health. UoM reiterated that it had already provided LOR with the reports of Dr Garvin, Dr Casson and Mr Conisbee.
In considering the matter; Roger Ter Haar KC commented that “what [UoM's Solcicitor's] letter shows is an openness which runs contrary to the hidden abuse which 'expert shopping‘ will typically involve”. With respect to Dr Garvin and Dr Casson, Roger Ter Haar KC said that he had seen nothing in relation to those two experts which justified the suggestion of expert shopping, and certainly nothing to justify the disclosure of a wide category of documents (such as solicitors' attendance notes).
With regards to Mr Conisbee, Roger Ter Haar KC rejected the suggestion that the reason why he is no longer able to be called is for anything other than health reasons. Roger Ter Haar KC concluded that the extensive disclosure already given sufficed to satisfy any pre-condition to the calling of expert evidence from Mr Stagg. Crucially, UoM had already provided reports for every expert it had previously engaged and was able to provide an explanation for why each further expert was instructed. Ultimately, the Court was not of the view that UoM had engaged in expert shopping.
The Birketts' View
Whilst the Courts' approach to expert shopping has not changed, this judgment shows that the Courts will take a sensible view when the reasons for changing experts do not suggest an abuse of process, previous reports have been shared between the parties and the party seeking to change its expert has been open as to the reasons for the change.
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