Experts – Expert retirement – “Expert shopping” – disclosure of Reports
The Claimant s sought damages from the Defendants (an architect and a design and build contractor) related to a fire at a shopping centre. The Claimant s sought permission to call a fresh expert for trial. The Claimant ’s case was supported by a report from S, an expert architect who was in his early 60s when first instructed in 2005. The case was technical and complex and pre-action protocol steps were followed.
A claim was issued in 2010. In 2011 information and documents were exchanged. An unsuccessful mediation took place in April 2012. After the mediation, the Claimant instructed its legal team to review S’s expert advice, and in addition S (by this time nearly 70) sought to withdraw from further involvement in the case as he wished to retire.
The Defendants resisted permission for S to be released and for the Claimant s to appoint a new expert, because they submitted it was clear from 2011 onwards that S wishes to retire and that the Claimant was “expert shopping.” They submitted that it should be a condition of any permission to call a new expert that the Claimant disclose all undisclosed expert reports, together with all written communications between the Claimant and S.
Edwards-Stuart J held that:
1. There was nothing unreasonable about S wishing to retire and be released from further involvement in the case. There was no evidence, and the Court would not speculate about whether his wish to retire was motivated by his age or by a “bruising experience” in expert meetings;
2. The Defendants were mistaken in their belief that S had indicated a wish to retire and be released as early as 2011. S had not taken that decision in 2011 but in 2012;
3. As there was as yet no permission for experts (because of the extended protocol period) there was no need for the Claimant to have permission to change experts; the Claimant could appoint who it liked. The application was effectively a pre-emptive application for permission to call, rather than change an expert;
4. Imposing the condition that undisclosed reports had to be provided as the price to be paid for permission to change experts after the pre-action protocol period had started ought to be the norm;
5. The Court had power to order disclosure of all reports, not just an expert’s “final” report, provided that the earlier reports contained the substance of the expert’s opinion;
6. In the present case, all of S’s reports would have to be disclosed as a condition of permitting the Claimant to call an expert architect;
7. The Defendants’ suggestion that the Claimant also disclose material communications with S was however dismissed. Such material was privileged, and in any event the solicitors’ attendance notes and the like would not contain the expert’s actual words or opinions, as well as other extraneous material not reflecting his opinions, and redaction was not a complete solution to that. Obvious difficulties might arise, for example if the expert did not agree the accuracy of the solicitor’s attendance note;
8. It was possible to conceive of a situation where such disclosure might be justified; but there would have to be a very strong case of expert shopping to justify an order that the solicitors’ written communications such as attendance notes be disclosed as a condition of permission.
An interesting case which will have relevance to experts and those instructing them alike. A proposal to change experts in the middle of the case (or in the middle of the protocol period) is usually met with huge suspicion by the other side and allegations of “expert shopping”. Moreover, it should not be assumed that the facts of this case were unique or confined to situations where an expert retires. Like everyone else, experts move, emigrate, change firms and even on occasion find themselves with a workload which means that they need to return instructions. The facts of this case – an expert approaching 70 who wished, not unreasonably, to retire – meant that the Claimant had good “cover” for its application, but it is easy to see the situation coming up again where the facts might not be so straightforward.
As previous editions of TEDR have noted, the rule that you are not generally permitted to change experts seems to mostly be honoured in its breach (in reported cases at least – which of course may simply reflect the fact that such situations are sufficiently unusual to be reported; what statisticians call “survivorship bias”). What is interesting about this case is that it affirms the fact that the Court will be astute to ensure that the other side is not prejudiced even where there is an innocent and justifiable reason for the change; it will order disclosure of the outgoing expert’s undisclosed reports.
It is often the case, particularly with the proliferation of Pre-Action Protocol steps which in heavy and complex cases can take several years, that a significant amount of “draft ”, “preliminary” or “initial” reports are produced by an expert which are not intended to be disclosed, but which simply reflect the expert’s evolving views as material becomes available. This case is a useful reminder that those reports – which are often relatively informal in tone and form – can easily end up being disclosed after all. Experts would do well to remember that and frame their reports accordingly. In particular, where an expert’s view is evolving over an extended period as more documents and information becomes available, experts would be well advised to protect their client’s position (as well as their own reputation) by making it clear what they have seen, what is new, and what precisely it is in the new material which has led to a change of view.