Architect – Expert evidence – Expert shopping – Claimants’ shopping centre suffering serious fire damage – Claimants suing defendant contractors for losses resulting from alleged inadequate fire protection in centre – Delays occurring in issue of proceedings – Claimants’ expert architect ceasing to act following unsuccessful mediation – Claimants seeking permission to call fresh expert – Whether claimants carrying on expert shopping – Whether proposed expert having relevant expertise – Application granted
The claimants were the owners of a shopping centre that suffered a serious fire in October 2004. They argued that, as a result of inadequate fire protection in the roof space and eaves canopies of the centre, the spread of the fire and consequent damage was far more extensive than it should have been. The first defendant was a design and build contractor, and the second defendant was a firm of architects engaged by the first defendant to perform its design obligations. The second defendant gave no warranties to the claimants, so that it only owed them a duty of reasonable care and skill at common law.
The claimants instructed an architectural expert (S) in November 2004 who produced a report which was disclosed to the defendants on a without prejudice basis in November 2006. No further reports had been disclosed, if any existed. In April 2007, the claimants issued a pre-action protocol letter. The claim form was issued in October 2010. Following an unsuccessful mediation in May 2012, S notified the claimants that he no longer wished to act as their expert. The claimants then applied to the court for permission to call evidence from a fresh expert architect.
The defendants resisted the application submitting that no good reason had been shown for S wishing to withdraw as an expert other than merely a personal preference and that there had been an appearance of “expert shopping” to which the appropriate response was to require disclosure of all the former expert’s undisclosed reports as a condition for permission to call the new expert.
Held: The application was granted.
(1) On the face of it, there was nothing unreasonable about an expert who, approaching his 70th birthday, wanted to be relieved of his duties as an expert in litigation that he could reasonably have expected to have been concluded some years earlier and which had no immediate end in sight.
(2) CPR 35.4(1) provided that no party might call an expert or put in evidence an expert report without the court’s permission. Since the claimants required the court’s permission to call a new expert, the court had power to grant permission on condition that the claimants disclosed any previous reports that they had obtained from S. It did not necessarily matter whether the former expert was instructed to prepare a report before the issue of proceedings or after it. The decision of the Court of Appeal in Edwards-Tubb v JD Wetherspoon [2011] EWCA Civ 136; [2011] PLSCS 78 suggested that the imposition of a condition of disclosure of any previous reports should be the usual practice where the change of expert came after the parties had embarked on the pre-action protocol procedure and thus engaged with each other in the process of the claim. That had clearly happened here. The difference was that S’s report had been disclosed before that process containing the substance of the expert’s opinion: Vasiliou v Hajigeorgiou [2005] 1 WLR 2195 applied.
(3) However, the disclosure of documents such as solicitors’ attendance notes of telephone calls with the expert which purported to record the substance of his opinions were privileged and there would have to be a very strong case to justify a condition that such notes should be disclosed in addition to any reports or draft reports by the expert. The present case was not a strong case of “expert shopping”, or anything near it. There was no evidence to indicate that the new expert had been approached at any time before S indicated that he wished to withdraw from the case.
In all the circumstances, this was not a case where the court was prepared to order disclosure of all attendance notes in which S’s opinions on any matter in issue had been recorded. To make such an order would result in a significant invasion of the claimants’ privilege that was not justified in the light of the evidence about the circumstances and timing of S’s withdrawal from the case. However, the claimants would be ordered to disclose any other report or document provided by S in which he expressed opinions or indicated the substance of such opinions on the matters in issue in these proceedings.
(4) The evidence of the new expert was admissible in relation to the claim against the second defendant because he was an architect. His specialist knowledge of fire precautions did not make his evidence as an architect inadmissible. It might be open to the second defendant to submit at a trial that his evidence should be given less or little weight because his ability to give evidence as to which a reasonable architect could or should do had been coloured or distorted by his specialist knowledge of fire precautions. But that was a matter which went only to weight, not admissibility. The extent to which he could give evidence in support of the claim against the first defendant might be more limited but where a contractor had assumed design obligations, there was no reason why the evidence of an expert architect should not be relevant to some aspects of those obligations: Sansom v Metcalfe Hambleton [1998] 2 EGLR 103; [1998] 26 EG 154 considered.
Robert Moxon Browne QC (instructed by Berrymans Lace Mawer LLP) appeared for the claimants; Fiona Sinclair QC (instructed by Reynolds Porter Chamberlain LLP) appeared for the first defendant; Nerys Jefford QC and Samuel Townend (instructed by Dentons UKMEA LLP) appeared for the second defendant.
Eileen O’Grady, barrister
