The dangers of change: Not an article on Brexit

As with economic unions, parties may sometimes seek to change their litigation unions. This can include the expert witness in court proceedings, as was highlighted in the recent TCC case of Coyne -v- Morgan and another t/a Hillfield Home Improvement (unreported), 24th May 2016. As with the exit from an economic union, the exit of an expert can raise complex issues.

Expert evidence is frequently used by parties to a construction dispute. Experts are commonly asked to give opinion on delay analysis, valuations and the quality of work and design. This can be both for adjudications as well as court proceedings. Importantly, there are clear rules about the process of engaging and changing experts in court proceedings. The rules for court proceedings arise because whilst the expert is paid for by the instructing party, they are not the expert of the instructing party. Rather, they are an independent expert instructed to assist the court by giving evidence as to matters of a technical or scientific nature which are out with the expertise of the court. The expert’s primary duty is to the court. This is reflected in the expert’s statement that must be included at the end of their report stating that they understand their overriding duty to the court and that they have complied with that duty.

For this reason, parties are strongly discouraged by the court from ‘expert shopping’. This means to approach a number of experts before you find one who will give an opinion that suits you. Of course, such expert shopping would be expensive as experts normally charge for their opinions on a time spent basis. So, to build up a bank of reports before you find one you like would be cost prohibitive. In any event, if you were to receive a number of unfavourable expert opinions, you would be well advised to take a view before embarking on costly litigation at the risk of having to pay the other-side’s costs.

In reality, such broad expert shopping doesn’t happen. Rather, during the course of litigation, you or the expert may decide to part ways. In reported court decisions this has happened where an expert has reached retirement age or found that he has too much work on. However, you also have to get the court’s permission if you want to change your expert. As with Brexit, there is no right to a second referendum or opinion simply because you didn’t like the outcome of the first. As the court is keen to avoid any suggestion of expert shopping, it will frequently require you to disclose the expert report you have already obtained, including any draft report, to the other-side as the ‘price’ for changing. Of course, if your first expert report is already disclosed this won’t cause a problem. Issues do arise when you have received a draft report from Expert A, only to find that he or she is not quite the expert you had hoped for and/or is expressing an opinion that you would prefer that they kept to themselves. In such circumstances you may not be able to avoid disclosing an unhelpful draft report to the other side. This, of course, means that the perceived benefit in changing the expert is lost. Drawing again on the Brexit analogy, the genie is out of the bottle and to stuff it back in is impossible. 

Moreover, the court can even go as far as to order that the notes of conversations between your lawyer and the expert be disclosed. Such notes are normally subject to client and lawyer privilege. At this point, your case may be fundamentally, if not terminally, damaged.

So, how best to avoid this catastrophe? We suggest the following:

• Carefully consider and identify what the issues are that your expert is to give opinion on. Only once you have done this can you be clear as to the type of expertise you require.
• Identify a list of at least three potential experts. Avoid the temptation of picking up the phone to a business acquaintance. There are associations of expert witnesses who can be contacted. Specialist solicitors normally maintain directories of experts they have instructed for clients in the past and who have been found to meet the requirements of expertise and the court rules.
• Remember that the expert needs both the specialism and current experience.
• Check that the expert has the time and resource to commit to the giving of the opinion and meeting the requirements of the court. This must be explained to the expert by your solicitor when instructing the opinion.
• Ideally (but not always) they will have acted as an expert before. Many experts will have provided reports but not appeared in court. This is not in itself a problem, as frequently the quality of an independent expert report will assist in resolving the dispute before any trial proceeds.

Be equally as rigorous in selecting and instructing your expert for adjudication as in court proceedings. Remember that you may end up in court and the report for the adjudication is likely to be scrutinised. 

Even Brexit won’t stop construction disputes arising. Getting the decision right the first time when engaging your expert is critical to effective and cost proportionate dispute resolution.