Requirement to disclose previous expert’s report and attendance notes after a clear case of Expert Shopping

There are many reasons why a party may wish to change their expert witness part-way through proceedings. It may be to find an expert with a more favourable opinion of their case. This is known as ‘expert shopping’ and is discouraged by the Courts. Where the Courts infer an appearance of expert shopping, they may require the party looking to change their expert to disclose the previous expert’s report.

The recent case of Rogerson (t/a Cottesmore Hotel, Golf and Country Club) v Eco Top Heat & Power Ltd [2021] EWHC 1807 has confirmed this position and covers the appointment of experts several years prior to pleadings being exchanged. Additionally, where the existence of a report is denied, this case showed the Court’s discretion extends to the disclosure of other documents containing the expert’s opinion.

The facts:

In 2018, the Claimant employed the Defendant to install windows throughout a Hotel, Golf and Country Club. During the installation, laundry bags ignited in the tunnels beneath the room where the Defendant’s contractors were working. The resulting fire caused around £8 million worth of damage and loss of business.

The cause of the fire was disputed, with the Defendant denying the claim that it was due to a contractors discarded cigarette or excessive angle grinder sparks. Both parties appointed experts to identify the cause. Dr Nagalingam was appointed for the Defendant and Mr Christie and Dr Vallance for the Claimant. The Defendant’s solicitors confirmed that Dr Nagalingam was appointed as their expert and he subsequently attended the hotel on two occasions. The first of which he was accompanied by the Claimant’s experts where they jointly interviewed witnesses and discussed the potential causes of the fire. The experts subsequently engaged with each other.

In February 2021, pleadings were exchanged and the Defendant stated that as Dr Nagalingam was only employed to provide pre-litigation advice and a basic understanding of the matter, he never produced an expert report. Instead, the Defendant wished to substitute him for a new expert, Ms Emma Wilson. The Claimant stated they would permit this provided that Dr Naglingam’s report was disclosed in full. The Defendant maintained that they had no written report and that all other correspondence was privileged.

Held:

The Court relied upon a wealth of case law when ruling in favour of the Claimant’s request for the disclosure of Dr Naglingam’s opinions and awarding costs of £32,000. It confirmed the following principles:

1. The reason for the change in expert is important and can impact the Court’s discretionary power to require the disclosure of documents relating to the expert’s opinion. The degree of disclosure runs on a sliding scale and is dependent on the facts. Where a “flagrant case of expert shopping” due to unfavourable views occurs, the Court is likely to impose harsher conditions including the disclosure of legally privileged documents. Where the change is due to an objectively justifiable reason, such as illness or retirement of an expert, the Court will impose less severe conditions on disclosure or may require no disclosure at all.
   
   
2. The absence of any written report does not mean that disclosure cannot be ordered. Other documents such as notes, preliminary materials and attendance notes containing the expert’s views may be demanded. This depends on the evidence and scale of expert shopping.
   
   
3. Where the experts’ fields are comparable, the Court may decide to place no degree of weight on whether the new expert was appointed because they are more qualified or experienced.
   
   
4. The Court will consider whether the expert was appointed to provide a private one-off inspection and pre-litigation assistance, or was appointed to act as an expert throughout the litigation. Where it is the latter, the Court will be more inclined to require disclosure. In deciding the reason for their appointment and how far to look back, the Court will examine the expert’s instructions and conduct throughout the history of the case. Additionally, where litigation is already in prospect, it is generally expected that the initial expert will have been appointed for the latter reason. The Defendant’s failure to provide Dr Naglingam’s instructions, alongside his engagement and liaison with the Claimant’s experts, indicated he was appointed for the latter reason.

This is another example of the Court taking an active role in the management of expert evidence, demonstrating the need to proceed with caution. Expert evidence is very often pivotal to resolving issues in dispute between the parties and a mis-step by a party in the way it engages with the appointed expert can have dire consequences.

If you would like any advice on the issues arising out of the appointment of experts, please do not hesitate to contact one of our expert Dispute Resolution solicitors.