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).

James Allsop, a senior associate in our disputes team, outlines the decision below. 

Background

The defendants were employed by the claimant to carry out various building works at the claimant's property. The claimant alleged that the works were defective and issued proceedings in the Technology and Construction Court in Birmingham.   

The defendants' expert, E1, inspected the claimant's property and provided the defendants with a draft report. During that inspection, E1 engaged in unauthorised "without prejudice discussions" with the claimant and the claimant's expert and discussed a number of structural issues concerning the claimant's property that did not originally feature in the claimant's particulars of claim.

The defendants informed E1 that he had been misinformed in relation to various matters by the claimant and its expert. They requested that E1 take this into account in his report and exclude any reference to the content of the "without prejudice discussions".

E1 stated that he felt unable to exclude reference to the "without prejudice discussions" and indicated that he wished to withdraw his services because of the defendants' apparent lack of confidence in him. The defendants asked E1 to continue acting for them but he ultimately refused that request. The defendants then instructed a second expert, E2, and sought the court's permission to adduce a report from E2.

Relevant principles

The issue to be determined was whether it should be a condition of the defendants being given permission to adduce expert opinion evidence from E2 that they disclose the draft report and any other material already produced by E1. In giving judgment, the judge (HHJ David Grant) identified the following applicable principles from the relevant authorities:

1. The court has a wide and general power to exercise its discretion whether to impose terms when granting permission to a party to adduce expert evidence.
2. In exercising that discretion, the court may give permission for a party to rely on a second replacement expert, but such discretion is usually exercised on a condition that the report of the first expert is disclosed (Vasiliou v Hajigeorgiou [2005] EWCA Civ 236).
3. Once the parties have engaged in a relevant pre-action protocol process, and an expert has prepared a report in the context of such a process, that expert owes a duty to the court and there is no justification for not disclosing such a report (Edwards-Tubb v JD Wetherspoon PLC [2011] EWCA Civ 136 – see post).
4. While the court discourages the practice of "expert shopping", its power to impose terms when giving permission to adduce expert evidence arises irrespective of any "expert shopping".  It is a power to be exercised reasonably on a case by case basis, in each case having regard to all the circumstances of that particular case.
5. The court will require strong evidence of "expert shopping" before imposing a term that a party discloses other forms of document than the report of the first expert (eg a solicitor's attendance notes of discussions with the expert) as a condition of giving permission to rely on another expert (BMG (Mansfield) Ltd v Galliford Try Construction Ltd [2013] EWHC 3183 (TCC) – see post).

Decision

The court permitted the defendants to adduce expert opinion evidence from E2 on the condition that they disclose the draft report of E1. 

The judge considered that there were two reasons why this was appropriate: 

• E1 had produced a draft report in the context of proceedings which had already been issued; and
• E1 had (a) discussed the expert issues in the case, and subsequently (b) attended a joint inspection with the claimant's expert. 

Notably, the judge stated that either of the above factors indicated that the court should impose such a condition; the conjunction of these factors made it all the more appropriate.

The judge did not however consider that it was appropriate to require the defendants to disclose any other material, such as attendance notes of meetings with E1 kept by the defendants' solicitors. This was not a "strong case of expert shopping".  To the contrary, the defendants had requested that E1 continue to act for them, and it was E1 who decided he could no longer act in the proceedings.