Permission to change experts only if "good reason"

The Court of Appeal has confirmed that permission for a change of expert will only be granted where a party has "good reason" for the change; the mere fact that the expert has altered his view is not enough: Guntrip v Cheney Coaches Ltd [2012] EWCA Civ 392.

The decision is further confirmation that the courts will take a hard line against "expert shopping" - the practice of going from expert to expert until a favourable opinion is found. Previous decisions have established that, in order to discourage expert shopping, the court will normally require disclosure of a previous expert’s report as the price of granting permission for a new expert (see post on the decision in Edwards-Tubb v JD Wetherspoon PLC [2011] EWCA Civ 136). The present decision shows that permission may not be granted at all unless good reason can be shown, and permission may be particularly difficult to obtain at a late stage of an action. Practical implications of the decision include:

• Where possible, in order to maintain flexibility, it is preferable to obtain permission to serve expert evidence based on a particular discipline rather than a named expert.
• It is difficult to over-state the importance of testing a potential expert’s views robustly before obtaining a report.

Background

The claimant brought a claim against his employer for personal injuries. He was given permission to rely on an expert report from an orthopaedic surgeon, Mr Jackson, who was specifically named in the order. The claimant filed and served a report from Mr Jackson which gave some support to his case (though the court commented that this support was "at best lukewarm"). Mr Jackson and his opposite number then met and produced a joint statement which was very harmful to the claimant's case. The claimant therefore sought permission to rely on evidence from another expert orthopaedic surgeon, Mr Banks, in place of Mr Jackson.

Lower court decisions

The district judge refused the application on various grounds, including that:

• Granting the application would cause further delay in what was already an old claim (the claim having been issued almost at the end of the limitation period and there having been various other delays).
• It would involve significant extra costs which would cause the overall costs burden to be disproportionate.
• It would have a deleterious impact on the possibility of a fair trial as part of the defence turned on disputed questions of fact and memories would fade over time.
• Mr Jackson had expressed his views tentatively in his disclosed report so the agreed statement did not represent a complete change of mind.
• Although the claimant would feel aggrieved that the application were refused, the defendant would be equally aggrieved if it were granted.
• Having considered the evidence to be given by Mr Banks, the judge took the view that its value would be small.

The circuit judge allowed the claimant's appeal against that decision, and the defendant was granted permission to appeal to the Court of Appeal.

Court of Appeal judgment

The Court of Appeal allowed the appeal, finding that the circuit judge had not been entitled to interfere with the district judge's exercise of his discretion in what had been a case management decision.

The Court of Appeal said that "expert shopping" is to be discouraged in light of the expert's overriding duty to the court, particularly where a party has had a free choice of expert and has put forward an expert report as part of his case. The party must adduce good reason for changing expert, and the mere fact that his chosen expert has changed his views is not enough. The court pointed out that an expert may have had good reason for changing his views, for example if he was confronted with additional evidence or if flaws in his initial report were pointed out.

The court approved the statement of Teare J in Stallwood v David [2006] EWHC 2600 (QB) that "the mere fact that an expert has changed or modified his opinion following an experts' meeting cannot by itself be a reason for permitting a party who is disappointed with the change or modification of opinion to adduce evidence from another expert. It would not be possible in such circumstances to suggest that further expert evidence is reasonably required to resolve the proceedings".

The court emphasised that a judge hearing an application to change experts must exercise his discretion in accordance with the court's overriding objective to deal with cases justly, which includes justice for the defendant as well as the claimant, and also involves saving expense, dealing with the case proportionately and ensuring that it is dealt with expeditiously. Here the district judge had considered the relevant factors and the exercise of his discretion was not flawed.

Comment

This decision demonstrates that, once a party has served an expert report in support of its case, the court will not lightly grant permission for a change of expert. A party will be required to show good reason for the change, and the simple fact that the expert has altered his view will not be sufficient. The Court of Appeal does not give any indication of what would amount to a good reason, but in Stallwood v David (referred to above) the High Court said permission should only be granted where there is good reason to suppose that the first expert has "modified his opinion for reasons which cannot properly or fairly support his revised opinion", such as if he has "clearly stepped outside his expertise or brief or otherwise had shown himself to be incompetent". In practice, this is likely to be a rare case.

The decision also suggests that permission for a change of expert will be particularly hard to obtain when sought at a late stage in the action. The Court of Appeal said that the same principles apply to a late change of experts as to a late amendment to a statement of case, i.e. "the court is and should be less ready to allow a very late amendment than it used to be in former times; and a heavy onus lies on a party seeking to make a late amendment to justify it as regards his own position, that of the other party to the litigation and that of other litigants in other cases before the court." Although not cited, this mirrors the approach of the Court of Appeal in Swain-Mason and ors v Mills & Reeve [2011] EWCA Civ 14 (see post), and contrasts with the approach of Peter Smith J in considering a late application to admit evidence in Nottinghamshire and City of Nottingham Fire Authority v Gladman Commercial Properties [2011] EWHC 1918 (see post).

The court also expressed agreement with two points made by Lord Justice Jackson in his review of civil litigation costs: first, that courts at all levels have become too tolerant of delays and non-compliance with orders; and second, that the appeal courts should support first instance judges who make robust but fair case management decisions. The Civil Procedure Rule Committee has approved a new rule to encourage a tougher approach to compliance with rules and court orders (see post). The rule will take effect in April 2013 when the majority of the Jackson reforms are to be implemented (see post).