Expert Shopping and Specific Disclosure

In the judgment of Allen Tod Architecture Ltd v Capita Property & Infrastructure Ltd [2016] EWHC 2171 (TCC), the court ordered a claimant to disclose its original expert’s notes, preliminary report and other documents setting out his opinion on the issues, as a condition for granting permission to the claimant to rely on a new expert.

The parties had been given permission to call an expert structural engineer. The claimant instructed an expert but lost confidence in him after delays in the production of his report. The claimant instructed a new expert. The defendant sought disclosure of the claimant's letters of instruction to the original expert and to the new expert, and any report, document and/or correspondence setting out the substance of the original expert's opinion, whether in draft or final form. The claimant had disclosed the letters of instruction and the original expert's report, which was supportive of the claimant's claim. 

The claimant submitted that the documents sought by the defendant were privileged and should therefore not be the subject of an order for disclosure. It also argued that it had already disclosed sufficient material, and it had not been guilty of ‘expert shopping’.

In considering this argument His Honour Judge David Grant outlined the following principles he felt were relevant: 

1.  the court had a wide and general power to exercise its discretion whether to impose terms when granting permission to a party to adduce expert opinion evidence;
2. on evidence; (b) the court could give permission for a party to rely on a replacement expert, but such discretion was usually exercised on condition that the report of the original expert was disclosed. The party seeking permission would therefore have to waive privilege in the first expert's report; 
3. once the parties had engaged in a relevant preaction protocol process, and an expert had prepared a report in the context of such process, that expert owed a duty to the court irrespective of his instruction by one of the parties. Accordingly, there was no justification for not disclosing such a report;
4.  the court's power to impose a condition for the disclosure of the first expert's report arose irrespective of the occurrence of any "expert shopping". It was a power to be exercised reasonably on a case-by-case basis, having regard to all the circumstances; 
5. the court would require strong evidence of expert shopping before imposing a term that a party disclose documents other than the report of the first expert (such as attendance notes and memoranda made by a party's solicitor of discussions with the expert) as a condition of giving permission to rely on a second expert

He did however state that whilst this was only a mild case of ‘expert shopping’ the court could still direct disclosure of material produced by the original expert, in which he expressed his opinion, as a condition of permitting the party to rely on a new expert. Accordingly, the court's power was reasonably exercised by ordering disclosure of those documents, along PAGE | 5 with any document in which the expert provided his opinion on the case prior to April 2016, as a condition for the claimant calling the second expert as its witness. To the extent that other material was contained within such documents, it was to be redacted.