Key takeaways
Earlier reports may need to be revealed
Courts may allow a new expert report, but typically require disclosure of all previous reports—even those from the pre-action stage.
Retirement, illness, or bias may justify replacement
Courts have accepted several legitimate grounds for instructing a new expert, but parties must tread carefully to avoid undermining credibility.
Naming experts early may limit flexibility
Naming an expert too soon may require court approval to switch later, and could lead to conditions being imposed.
‘Expert shopping’ describes the practice of switching experts because a first report does not support the case of the instructing party. For obvious reasons, the practice should be discouraged by the court as to indulge it would completely undermine CPR 35.3, the starting point for dealing with experts in civil litigation, which states that an expert’s primary duty is owed to the court and this duty overrides any duty owed to the instructing party.
CPR 35.4 states that no party may rely on expert evidence without prior permission of the court (not there is no prohibition on instruction). This rule grants the court a wide discretion which is sometimes used to allow parties to rely on a new expert. Obtaining permission is not particularly difficult but is usually conditional upon previously obtained reports being disclosed. A recent case demonstrates this:
In D (A Child by Her Father & Litigation Friend Mr S) -v- Chapman (2017) – unreported, liability was admitted but quantum remained in dispute. The claimant, a child, had been in a RTA that had allegedly caused a severe brain injury. The defendant’s case was that the claimant’s developmental issues were incidental to the RTA and that she would have suffered with them in any event: the accident was in this sense coincidental. The claimant instructed three experts in sequence:
the first retired;
the second supported the defendant’s case and
the third supported the claimant’s case that the RTA caused the injury in question, and the claimant sought permission to rely on this report.
This certainly looked like expert shopping, which is what the defendant argued. However, the court granted the claimant permission to rely on the new expert on the condition that the two previous reports were also disclosed.
Other explanations that have been given and accepted by the courts as good reason to obtain new evidence are for example:
That the expert favours the other side’s case: see Edwards-Tubb -v- JD Wetherspoon plc [2011] 1 WLR 1373; EWCA Civ 136 and Chapman, above.
That the expert is retiring: BMG (Mansfield) Ltd -v- Galford Try Construction Ltd; [2013] EWHC 3183 (TCC).
That the expert no longer has time because litigation has lasted longer than anticipated: Coyne -v- Morgan [2016] EWHC B10 (24 May 2016).
That the expert and client disagree with each other: Coyne, as above.
That the expert has fallen ill: Vilca -v- Xstrata Limited [2017] EWHC 1582 (QB).
It is therefore worth remembering that obtaining a second expert report is not impossible, but caution is required as earlier reports are likely to have to be disclosed. Bear in mind the following:
Pre-action reports are still disclosable: the condition that previous reports must be disclosed also applies to those obtained at the pre-action stage. LJ Hughes in Edwards-Tubb made the point that as soon as an expert is instructed then his duty to the court commences and therefore a pre-action report is still disclosable. Choose your expert wisely, considering his/her expertise carefully.
The court would not normally consider it reasonable for a party to recover costs of two experts in the same field: see Hall -v- Stone (2007). Therefore again, avoid instructing a second expert if possible as it will be at your own expense.
You may be ordered to disclose first drafts of your expert’s report if you are seeking to rely on a second expert: BMG, Coyne -v- Morgan. Consider whether you can clarify points in an expert’s report by phone rather than as part of the draft report as telephone notes are unlikely to be disclosable.
Consider whether the court’s authority is actually required to change experts. Is the expert named in the direction? If not, can you comply with the order and timeframe even if you instruct a new expert? If so, no court authority is required and therefore no condition can be imposed. Therefore, tactically is it better not to name your expert in the directions if you are yet to instruct or even talk to him/her? Hajigeorgiou -v- Vasiliou [2005] EWCA Civ 236 2005 WL 513420
Try to find out who the claimant’s expert is: it is only if the other side is aware of the existence of an earlier report that they can seek its disclosure. Remember at the pre-action stage there is no duty to say who your expert is, only to confirm which the field of expertise.
