Changing experts: full disclosure and timely notice required

Flora Gray, Associate, London

Two recent cases provide useful guidance for parties who need to change their expert. In particular they should make sure that they notify the court and the other parties promptly, and bear in mind that full disclosure may be required.

In BMG (Mansfield) Ltd and another -v- Galliford Try Construction Ltd¹ the Court allowed a party to change its expert witness because there was good reason for the original expert to withdraw (he wanted to retire). In the circumstances there was no evidence of expert shopping.

However, the judge did - as is common in cases where permission to change experts is requested - order disclosure of the expert's report. The report in this case had been disclosed on a WP basis pre-action, so was not technically a Part 35 report. However, the Judge considered that he had authority to order disclosure of any previous report. He also ordered disclosure of any other report or document provided by the expert to the solicitors in which he expressed or indicated the substance of his opinions. The judge refused to order disclosure of solicitors' attendance notes, which contained the expert's opinion, stating that there would have to be a very strong case of expert shopping to extend the condition that far.

To help counter the allegation of expert shopping the judge stated that it would have been helpful if the retiring expert had explained his reasons for retiring in a witness statement. In this case the judge was able to infer his reasons from the circumstances and conduct of the parties, in particular the fact that no steps had been taken by the claimants to instruct an alternative expert before the original expert retired. It is therefore important that the conduct of the parties does not in any way imply expert shopping.

Conversely in Clarke -v- Barclays Bank plc² the claimant was unable to instruct a new expert even though the original expert was withdrawing from the case due to retirement. The fact that the claimant withheld this information for nearly seven months was fatal to the application.

The judge considered it wholly improper to withhold the information beyond a reasonable time. If the claimant had promptly notified the court then it would have been sympathetic. The judge also took into account the fact that allowing the new expert would be tactically advantageous to the claimant. The timetable had envisaged a sequential exchange of expert evidence and the defendant had already responded to the claimant's original report. The claimant would therefore be at an advantage if it prepared a new report as it could do so in light of the defendant's report.

Comment

Changing experts can be difficult. Provided there is good reason (i.e. no evidence of expert shopping) and the application is timely (unlike in Clarke), the courts are usually prepared to grant permission. However, disclosure will be required and, as the BMG (Mansfield) case indicates, that can extend beyond the draft report to other documents in which the expert expresses his opinion and, potentially, to solicitors' papers where there is a very strong appearance of expert shopping.

Please click on the links below for the other articles in the April 2014 Commercial Litigation Newsletter:

• Service: recent developments
• Brussels Regulation: which takes priority - contract or tort claim?
• Failure to respond to a request for mediation is in itself unreasonable
• Settlement: recent developments
• Impact of contractual exclusion clauses on the availability of injunctive relief
• Deciphering Part 36: the saga continues
• Litigation privilege: the dominant purpose test revisited
• Court news: CPR update and other developments
• Collective actions update: "opt-out" coming to a competition claim near you
• Reforms to judicial review: Part II

_Notes

_{^1. [2013] EWHC 3183 (TCC).}

_{^2. [2014] EWHC 505 (Ch).}