Expert Shopping – Seeking to rely on a new expert

As is common at this time of year, many shops and department stores are happy for you to return unwanted Christmas presents and swap them for something you really wanted. However, the English courts do not like parties changing an unwanted expert for a new one. This practice, known as ‘expert shopping’, may see the court order the disclosure of the previous experts’ possibly privileged material, in return for allowing a party to rely on a new expert.

The Technology and Construction Court considered this recently in Matthew Rogerson (t/a Cottesmore Hotel, Golf and Country Club) v Eco Top Heat & Power Ltd [2021] EWHC 1807 (TCC).

Background

In June 2018, a fire broke out at the claimant’s hotel causing significant damage and shutting the hotel for a significant period. Two days after the fire, the defendant’s solicitors wrote to the claimant stating that they were intending to instruct an expert forensic fire investigator on behalf of the defendant and noted that Dr A C Nagalingam of Dr JH Burgoyne & Partners LLP had been retained.

The claimant issued proceedings against the defendant, Eco Top Heat & Power Limited, who were undertaking window installation works at the hotel at the time of the fire, claiming damages of over £7.5 million.

The claimant alleged that the fire was most likely started by the defendant’s employees discarding a cigarette butt. The defendant denied this but put forward no positive case as to how the fire started.

The claimant alleged that during a site visit to the hotel the claimant’s experts stated that the cause of the fire was a “cigarette”, whilst Dr Nagalingam said, “it’s hard to see it’s anything else”.

Dr Nagalingam did not prepare an expert report but provided his view on the cause of the fire to the defendant’s solicitors in October 2018, which was recorded in a privileged file note.

However, in the court proceedings the defendant’s draft directions identified Ms Emma Wilson of Prometheus Forensics Ltd as their expert in relation to the cause of the fire. When the claimant received an unsatisfactory response as to why the defendant was no longer proceeding with Dr Nagalingam, it issued an application for disclosure of Dr Nagalingam’s work output, as a condition for the Court allowing the defendant to change experts.

Decision

The Court granted the application, stating that “The Defendant may rely upon the evidence of Ms Emma Wilson of Prometheus Forensics Ltd on condition that the Defendant provides disclosure of [the] attendance note of 2 October 2018 to the extent that it sets out or refers to views expressed by Dr Nagalingam on causation. It may otherwise be redacted.”

Key Principles

The Court has the power to impose a condition in respect of the changing of experts, even if this amounts to disclosure of privileged documents. Importantly, this does not override privilege, but gives the party seeking to change experts a choice: they may rely on Expert B, but on condition of waiving privilege in relation to Expert A.

This case raised two issues:

1. Whether the defendant was really changing experts?

The Court acknowledged that there was a difference between an expert who was instructed at an early stage to advise on the viability of a claim and one who was engaged to prepare a report for the Court under the Court rules, CPR 35. The Court held that in the case of the former, an order for disclosure would not normally be granted unless there were unusual factors at play.

In the case in hand, the defendant argued that Dr Nagalingam had been instructed to provide advice prior to engaging with the Pre-Action Protocol for Construction and Engineering Disputes. However, in the absence of any retainer letters or other convincing information, the Court held that Dr Nagalingam “had been instructed with a view to (if not in fact) appointing him as the CPR 35 expert”. As such, dependent on the facts of the case, abandoning an original expert could be seen as expert shopping, even if the expert was instructed before the relevant pre-action protocol came into effect.

2. Whether the Court should exercise its discretion to order disclosure?

The Court re-iterated the principle that expert shopping was undesirable and to be discouraged. However, the Court acknowledged that there is effectively “a sliding scale where, at one end, might sit a flagrant case of expert shopping simply because a party does not like the damaging views expressed by his current expert, and at the other end might be the unexpected need to replace the expert for objectively justifiable reasons such as illness or retirement of the expert in question.”

If the facts strongly resemble expert shopping, it is more likely that the Court will impose more demanding conditions in respect of any waiver of privilege and the scale or scope of material to be disclosed. If the facts suggest that the change of expert was justified, then less onerous, if any, conditions are likely to be imposed. The Court also noted that it is unlikely that the Court would order the disclosure of solicitors’ attendance notes where the circumstances are on the low end of the sliding scale, particularly because of the risk that these would not properly record the expert’s actual words.  

However, in this case, the Court drew a clear inference that expert shopping had occurred for tactical reasons, in particular because Dr Nagalingam had concluded, unfavourably for the defendant, that a discarded cigarette was the likely cause of the fire and had told the defendant’s solicitors this.

Instruct experts carefully

As the previous case law in this area related largely to personal injury cases, this decision is important for those operating under the Pre-Action Protocol for Construction and Engineering Disputes.

As might be expected, each case will turn on the facts. However, given the Court’s negative view of expert shopping, unless mitigating factors can be shown, swapping an expert at a later stage of a dispute could come at the expense of the disclosure of the original expert’s privileged work output.

As such, it is important that parties in contemplation of a dispute consider carefully how and when they obtain expert advice at the. Further, parties should ensure that the instructions of experts engaged in the early stages of a dispute are clearly drafted to set out the relevant scope of works required.

For more information on the above please contact Sam Johnson or your ususal Charles Russell Speechlys contact.