No Christmas (expert) shopping here: University of Manchester v John McAslan & Partners Limited & Laing O'Rourke Construction Limited [2022]
Overview
Summary
This recent decision considered when it will be appropriate for the court to exercise its discretion to require disclosure of a report from a previous expert when a party wishes to change expert, and what the court should take into account when exercising that discretion.
There are two main reasons for the discretion, namely to guard against expert shopping, and to ensure that the court has relevant material before it. The court in this case found that it was appropriate for it to exercise its discretion in order to ensure that the court had all the material facts before it, but as there was no evidence of expert shopping, it refused to grant the extensive conditional disclosure sought, instead finding the disclosure that had already been given to be sufficient.
"Expert shopping" is where a party to litigation decides to substitute one expert witness with another to provide another opinion on the same subject matter as the original expert. Without a good reason for the change, such as ill-health of the original expert, the inference will often be that the opinion of the first expert did not support the instructing party's case. The courts discourage this practice via their discretion to impose conditions should a party wish to swap expert, generally ordering disclosure of the report(s) of the original expert. Strong evidence of expert shopping will be required for more extensive disclosure, for example, of privileged communications between the expert and their instructing solicitors.
Background
These proceedings concern a dispute about the design and construction of a building project at the University of Manchester (UoM). UoM claims breach of contract against the designer, John McAslan and Partners with regard to the designs for the buildings, and against Laing O'Rourke Construction Limited (LOR) with regard to their construction.
UoM had obtained reports from three experts before commencing proceedings. At a CMC, UoM sought permission from the court to adduce expert evidence from a different expert under CPR 35.4(1). LOR asked the court to make its grant of permission conditional on UoM disclosing: (a) draft or final reports, letters, emails, notes or other documents produced by UoM’s former experts; and (b) attendance notes or other documents produced by UoM’s past or present solicitors recording meetings, telephone calls and other discussions with the UoM's former experts on the basis that UoM had changed its experts.
LOR claimed that UoM had switched to a new expert because its original experts' opinions were developing in such a way that UoM considered would be adverse to its case before the court. UoM denied this.
UoM had already disclosed the three original experts' reports and instructions.
Decision
The judge declined to make his grant of permission to adduce expert evidence conditional on the disclosure sought by LOR. Having reviewed the authorities, he concluded that the court had a wide and general power to exercise its discretion whether to impose terms on permission to adduce expert evidence, including conditions as to disclosure. When deciding what conditions of disclosure it should impose, the court could legitimately take into account the need to ensure so far as possible that relevant factual evidence was available to it and to the parties.
The court found that, because the UoM no longer wished to adduce evidence from the three original experts, it had changed its position with regard to is experts such that the court's discretion to impose a disclosure condition on the grant of permission to adduce evidence from the new expert was engaged. However, the court concluded that this case was a long way from the sort of abuse or potential abuse of the expert witness process that courts should be careful to guard against, and that the openness with which UoM's solicitors had set out their client's position ran contrary to the hidden abuse that expert shopping will typically involve.
The court did find, however, that it was right that the evidence from the original experts should be available to the court and the parties, not because of suspicions of expert shopping, but because it was or might be relevant evidence of primary facts. However, that legitimate interest had been satisfied by the disclosure that UoM had already provided. The court had seen nothing to suggest any evidence of expert shopping such as to justify requiring disclosure of the additional documents sought.
Practical application
As well as providing a helpful summary of the authorities in this area, there are also one or two tips for practitioners in this decision:
- If your client has to turn to a replacement expert, it will pay dividends to be as transparent as possible about the reasons for the change. The court in this case expressly noted the open approach taken by UoM's solicitors to this issue in pre-action correspondence, finding that to be inconsistent with the clandestine abuse that expert shopping will involve.
- Whether you are seeking conditional disclosure or defending a request for it, consider supporting your client's case with a witness statement. The judge in this case noted that it would have been helpful to have had a witness statement in support of LOR's position that there had been expert shopping, and an answering statement in support of UoM's position that there had not.
