In a recent case the High Court has considered its discretion to require disclosure of documents relating to a previous expert's views when granting a party permission to adduce evidence from a new expert: The University of Manchester v John McAslan & Partners Ltd [2022] EWHC 2750.
The court was satisfied that this was not a case of “expert shopping” – that is, seeking to replace a less favourable opinion obtained from one expert with a more favourable opinion from another – since the party had already given extensive disclosure of its previous experts' reports and instructions, and one of the experts was being replaced due to illness. There was no justification for requiring broader disclosure of all documents produced either by the former experts or the party's solicitors which evidenced the experts' views.
The decision emphasises, however, that the court will be astute to consider cases of apparent or possible expert shopping, bearing in mind that an opponent will usually have limited visibility of the true reasons a party is seeking to change experts. Where the court suspects expert shopping, it may require very broad disclosure to ensure that full information is available.
Background
The University of Manchester started proceedings in 2019 against the defendant contractors alleging breaches of contract relating to the design and construction of a building project at the University of Manchester. The claimant sought damages in excess of £13 million
Between 2013 and 2017, before the proceedings commenced, the claimant obtained reports from a number of experts providing their opinions on the nature of the defects and the steps necessary to remedy the defects. These reports were disclosed to the first defendant.
At a Case Management Conference in October 2022 the claimant sought the court's permission to call expert evidence from a structural engineering expert, Mr Stagg. The first defendant requested that permission be granted only on condition that the claimant disclose certain categories of documents relating to three experts who were no longer instructed by the claimant. These categories were:
(1) any report (draft or final), letter, email, note or other document produced by the former experts in which they expressed opinions in relation to the dispute; and
(2) any attendance note or other document produced by the claimant's past and present solicitors recording meetings, telephone calls and other discussions with the former experts evidencing their opinions.
The defendant justified its request on the basis that the claimant was “expert shopping”.
Decision
The High Court (Mr Roger Ter Haar KC sitting as Deputy High Court Judge) granted the claimant's application without attaching the conditions requested by the first defendant.
Having conducted a review of the authorities he set out the following important points arising from the case law:
- The court's discretion to require disclosure of an expert report which would otherwise be privileged applies when a party wishes to change expert, whether the first expert has provided a “pre-issue” or a “post-issue” report, 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's discretion should normally be exercised in favour of requiring disclosure, but as with any other procedural discretion there can be departures from the norm if circumstances render that just.
- There are two reasons underlying this practice: firstly, to guard against expert shopping; and, secondly, to ensure that the court has relevant material before it.
The judge referred to the TCC case of BMG (Mansfield ) Ltd v Galliford Try Construction Ltd [2013] EWHC 3183 considered here. In that case the court granted the claimant permission to replace its expert subject to the narrow condition that it disclose reports or documents provided to it by its previous expert, but declined to order wider disclosure of other documents such as attendance notes. In giving its judgment, the court observed that disclosure “may result in a significant invasion of the claimants' privilege” and “there has to have been ‘expert shopping' or at least a very strong appearance of it, before disclosure of the type sought on this application should be ordered”.
In the present case, the judge found that since the claimant no longer wished to call evidence from three of the experts it had previously instructed, there had been a sufficient change of position to engage the court's discretion to impose a disclosure condition on the grant of permission to call Mr Stagg.
However, the judge considered that the situation was “a long way from the sort of abuse or possible abuse of the expert witness process in respect of which… the court is astute to guard its procedure”. The claimant had shown an openness which ran contrary to the hidden abuse “expert shopping” will typically involve, and in respect of one of the experts the court was satisfied that he was no longer to be called for health reasons.
While it was right that the former experts' evidence should be available to the court, as it potentially contained evidence of primary facts, that was satisfied by the disclosure already given. The court therefore declined to order disclosure of the wider categories of documents requested by the first defendant.
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