The price of changing experts: disclosure of privileged report

In a recent decision, the Technology and Construction Court granted defendants permission to adduce expert opinion evidence from a second expert, after their first expert had ceased to act, on the condition that the defendants disclose the first expert's draft report. However, the defendants were not required to disclose their solicitors' attendance notes of meetings with the first expert, on the basis that it was not a "strong case of expert shopping": Stewart Coyne v (1) Alec Morgan (2) Alex Harrison (T/A Hillfield Home Improvement) (unreported, 24 May 2016).

The decision is a helpful reminder that the court's power to impose conditions when granting permission to adduce expert evidence is not limited to instances of "expert shopping" (in the sense of shopping around for a more favourable expert opinion in place of one already obtained). It suggests that once a party has engaged in a pre-action protocol process and appointed an expert in that context, it should expect to be required to waive privilege in  that expert's report if it later wishes to obtain permission to adduce evidence from a different expert. That approach applies irrespective of the party's motivation for changing expert.

However, only in cases where there is strong evidence of "expert shopping" is it likely that the court will require that a party discloses other forms of document that contain the substance of the expert opinion (for example solicitors' attendance notes of meetings with the expert).

For more information, please see our Litigation Notes blog.