Expert evidence – Disclosure – Privilege – Defendant applying for specific disclosure of documents concerning opinion of expert witness instructed by claimant – Whether documents being privileged – Whether claimant having disclosed sufficient material – Whether claimant “expert shopping” – Application granted
The claimant was engaged by the local authority to provide a one-stop construction management service as the authority’s architect, design consultant on project to renovate Barnsley Civic Hall. In turn, the claimant retained the defendant to provide it with structural engineering advice and services. The claimant brought a claim in professional negligence against the defendant in connection with the project. The local authority brought a claim against the claimant in arbitration proceedings which had been settled. The defendant denied liability and causation and challenged the reasonableness of the settlement sum that the claimant had agreed with the local authority.
The defendant applied for specific disclosure of documents concerning the opinion of an expert witness instructed by the claimant. The parties had been given permission to call an expert structural engineer. The claimant instructed an expert but lost confidence in him after delays in the production of his report and instructed a new expert. The defendant sought disclosure of the claimant’s letters of instruction to the original expert and to the new expert, and any report, document and/or correspondence setting out the substance of the original expert’s opinion, whether in draft or final form. The claimant had disclosed the letters of instruction and the original expert’s report, which supported the claimant’s claim.
The claimant submitted that the documents sought by the defendant were privileged and should therefore not be the subject of an order for disclosure. Further, it had already disclosed sufficient material and was not guilty of “expert shopping”, in the sense of it having obtained an unfavourable report from the first expert and seeking to adduce a second opinion in its place.
Held: The application was granted.
The court had a wide and general power to exercise its discretion whether to impose terms when granting permission to a party to adduce expert opinion evidence. The court could give permission for a party to rely on a replacement expert, but such discretion was usually exercised on condition that the report of the original expert was disclosed. The party seeking permission would therefore have to waive privilege in the first expert’s report. Once the parties had engaged in a relevant pre-action protocol process, and an expert had prepared a report in the context of such process, that expert owed a duty to the court irrespective of his instruction by one of the parties. Accordingly, there was no justification for not disclosing such a report. The court’s power to impose a condition for the disclosure of the first expert’s report arose irrespective of the occurrence of any “expert shopping”. It was a power to be exercised reasonably on a case-by-case basis, having regard to all the circumstances. Furthermore, the court would require strong evidence of expert shopping before imposing a term that a party disclose documents other than the report of the first expert, such as attendance notes and memoranda made by a party’s solicitor of discussions with the expert, as a condition of giving permission to rely on a second expert: BMG (Mansfield) Ltd v Galliford Try Construction plc [2013] EWHC 3183 (TCC); [2013] PLSCS 255 and Coyne v Morgan 166 Con LR 114 applied. Vasiliou v Hajigeorgiou [2005] EWCA Civ 236; [2005] 1 WLR 2095 and Edwards-Tubb v JD Wetherspoon plc [2011] EWCA Civ 136; [2011] PLSCS 78; [2011] 1 WLR 1373 followed.
(2) There was no difference between the position where the condition to be imposed was (a) disclosure of the previous report (in the form of a final and/or Part 35 compliant report) of the first expert, or (b) disclosure of any earlier draft or provisional report, or other relevant document, produced by the first expert in which he set out the substance of his opinion on the issues in the case, which would not have been disclosable had the expert remained the expert witness of the applying party. Accordingly, the fact that any of the documents presently sought to be disclosed might be privileged was not a reason to prevent their disclosure as part of the price which the claimant had to pay in order to call the new expert as its expert witness at trial.
(3) The court’s power to direct disclosure was not confined to directing disclosure of the first expert’s final and/or signed and/or Part 35 complaint report as a condition of permitting the applying party to rely on the new expert but extended to any earlier draft or provisional report, or any other relevant document, in which the first expert had expressed his or her opinion on the issues in the case. The present case was not one of expert shopping or, if it was, it was only to a faint degree. The court could still direct disclosure of material produced by the original expert, in which he expressed his opinion, as a condition of permitting the party from relying on a new expert. The evidence indicated that the first expert’s notes and preliminary report were documents in which he expressed his opinion on the issues in the case. Accordingly, the court’s power was to be exercised reasonably by ordering disclosure of those documents as a condition for the claimant calling the second expert as its witness. To the extent that any other material was contained within any such document, it was to be redacted before the document was disclosed: BMG (Mansfield) Ltd v Galliford Try Construction plc applied.
Ben Patten QC (instructed by Mills & reeve, of Birmingham) appeared for the claimant; Lynne McCafferty (instructed by Beale & Co) appeared for the defendant.
Eileen O’Grady, barrister
