The TCC provides yet more reasons why expert shoppers should beware …
Following my previous article discussing the price of expert shopping in Fenwick Elliott’s 2021/2022 Annual Review, there have been further decisions of the TCC which should act as cautionary tales for anyone looking to “expert shop”. “Expert shopping” describes the (unacceptable and proscribed) practice where an instructing party will “switch” experts where the first expert’s views do not support its case.
This blog looks at the recent decisions of Avantage (Cheshire) Ltd & Ors v GB Building Solutions Ltd & Ors  EWHC 802 (TCC) (5 April 2023) and University of Manchester v John McAslan & Partners Ltd & Anor  EWHC 2750 (TCC) (2 November 2022).
By way of a short recap, the Court must give permission to a party who wishes to rely on expert evidence1 but such evidence “shall be restricted to that which is reasonably required to resolve the proceedings”.2 Where a party seeks to change an expert who has been instructed “for the purposes of proceedings”,3 it is a matter of judicial discretion whether the Court permits the substitution of one expert for another and conditions may be attached to any such order.4 The aim of these conditions is to discourage expert shopping on the basis that a previous expert’s unfavourable views may become public, and to ensure that the Court and the other parties have the benefit of all relevant material.
University of Manchester v John McAslan & Partners Ltd & Anor
This case concerned the University of Manchester’s allegations of breaches of contract for the design and construction of three blocks of student accommodation. In making its case, the University had obtained reports from three separate experts and, at the Costs and Case Management Conference (CCMC), sought permission to rely on the evidence of an entirely different fourth expert, Mr Stagg. The Defendants requested that the Court’s permission for such a substitution be conditional on the University disclosing all reports (draft or final), communications, notes, etc., produced by the three “former” experts as well as any attendance notes from the University’s solicitors which evidenced these experts’ opinions. The University had already disclosed the final reports of these three experts, together with their instructions, and so the dispute centred on whether disclosure of the more sensitive documents (i.e. privileged attendance notes) should be ordered.
Sitting as a Deputy High Court Judge, Roger Ter Haar KC provided a useful summary of the relevant authorities to consider when dealing with an application to substitute an expert. On the basis that the University had already disclosed the three final reports, an order for the disclosure of documents (such as privileged draft reports and attendance notes) required a high threshold test to be met. Accordingly, the burden was squarely on the Defendants to demonstrate, at the very least, the strong appearance that expert shopping was indeed taking place.
Judge Ter Haar found that the Court’s discretion under CPR 35.4(1) was engaged, that the Court’s permission for evidence to be adduced by Mr Stagg should be granted, and that no conditions, related to disclosure of documents or otherwise, should be attached to this permission. In coming to this conclusion, the Judge noted that the University’s solicitors had been open and frank about the reasons for calling Mr Stagg rather than the other experts “which runs contrary to the hidden abuse which ‘expert shopping’ will typically involve”.5 He also noted that there was no evidence that the University had changed its position due to adverse expert evidence, but rather that this evidence was of minimal value in respect of the pleaded cases. Ultimately, there was no expert shopping and, in any case, the disclosure already made extended to what was “reasonably required to resolve the proceedings”.
Avantage (Cheshire) Ltd & Ors v GB Building Solutions Ltd & Ors
Here, Mrs Justice O’Farrell was called to consider the substitution of two experts, instructed by the Claimants, at the point when proceedings were well and truly underway, indeed, very close to the trial commencing. The dispute related to a fire which, in August 2019, nearly destroyed the entirety of a retirement village in Cheshire. The two experts in question were Ms Hooton, a forensic scientist called to give evidence on the origin and spread of the fire, and Mr Wise, a fire engineer who would be opining on whether the building complied with the relevant fire and building safety regulations.
The Claimants’ reason for applying to have Ms Hooton substituted was, unfortunately, due to the expert’s ill health and her needing to withdraw in order to receive treatment. The Defendants did not object to the substitution itself but did seek conditions, primarily for the disclosure draft reports, notes of investigations, interviews with witnesses and attendance notes detailing her opinions. O’Farrell J gave permission for the substitution but refused to impose conditions surrounding Ms Hooton’s draft reports or other documents evidencing her opinion. The Judge did, however, order the disclosure of the notes taken by Ms Hooton as part of her site investigations that took place very shortly after the fire. This was not because of any impropriety on the part of the Claimants, but, instead, because of the evidential value these notes would have to all involved, not least to the trial judge.
The circumstances surrounding the substitution of Mr Wise were less straightforward. The Claimants made the argument that there was an excessive amount of crossover between the work done by Ms Hooton (and now her successor) and Mr Wise. This “duplication” related to whether the fire strategy (notably the decision not to install sprinklers) would ultimately have reduced the damage caused and such matters could necessarily be addressed by Ms Hooton’s replacement. The Defendants resisted this substitution on the basis that no proper explanation/good reason for it had been presented and the Claimants’ conduct should, therefore, be considered expert shopping. Alternatively, the Defendants argued that, if permission were to be granted, disclosure conditions should be imposed.
Whilst the Court could see that the Defendants had legitimate concerns about expert shopping, Counsel for the Claimant ultimately made it clear that the reason behind the dispute was that his clients were “not happy with Mr Wise as an expert”.6 O’Farrell J found that, in the interests of justice, the Claimants should have confidence in the expert on whose evidence they rely and granted permission for the substitution. However, on the basis that Mr Wise was otherwise available and qualified to give evidence in this matter, O’Farrell J ordered that his reports (final or otherwise), together with any notes detailing Mr Wise’s opinion, must be disclosed. On the basis that the Judge did not consider that the Claimants were engaged in culpable behaviour or otherwise seeking to abuse the expert process, disclosure of documents such as attendance notes of discussions between their solicitors and Mr Wise was not ordered.
Key points to take away
What these judgments (continue to) make clear is that the Courts are alive to even a very small chance that parties may attempt to game the system when it comes to expert evidence. Experts cannot be “guns for hire” who present whatever case their client wants them to. Their independence and overarching duty to the Court is protected through measures that will not allow parties to switch experts until they get an answer they like.
If a party is even considering substituting an expert where there is a viable option not to, they should consider this line of authorities very carefully. Evidence, or even an inference, of expert shopping (should this be the case) will ultimately come out and the consequences can be severe. If a party is ordered to disclose unfavourable evidence produced within early expert reports, not only is their case undermined but their own credibility may be irreparably damaged.
In circumstances where it is simply unavoidable that an application for substitution must be made, these judgments make it clear that being open and honest about the reasons why is the best policy. Particularly in the case of Mr Wise, the initial, opaque reasoning did not assist the Claimants’ case. It was not until the Judge was able to unpick the matter at the hearing that the true position became clear. Ultimately, the candid over the cagey will generally win the day.