Allen Tod Architecture Limited v Capita Property and Infrastructure Limited (previously known as Capita Symons Limited) [2016] EWHC 2171 (TCC)

The facts

This case concerned a professional negligence claim against a structural engineer involved in the development of Barnsley Civic Hall.

The Claimant instructed an expert (“Expert A”) to assist with the claim. However, due to alleged performance issues, the Claimant dispensed with Expert A’s services and instructed an alternative expert (“Expert B”).

The Defendant sought disclosure of:

(a) the letter of instruction to Expert A;

(b) the letter of instruction to Expert B;

(c) any reports, documents or correspondence in which the opinion of Expert A was set out, whether or not it was in a final or draft form (“the General Documents”).

The Claimant disclosed the letters of instruction but resisted disclosing the General Documents.

The law

One of the underlying principles of Part 35 of the Civil Procedure Rules is that an expert owes its duty to the Court and not to the party that pays its bill, or to the solicitors.

However, inevitably, some communications between the client, the expert, solicitors and Counsel will be privileged due to the circumstances in which they arose. For example, communications from Counsel involving the expert and attendance notes prepared of meetings and conferences with Counsel.

There is, therefore, a delicate balance to be struck as to what is disclosable and what is privileged. However, it is well established and indeed a requirement of the practice direction to Part 35, that the substance of all instructions should be included in the expert’s report. For that reason, the letter of instruction is normally contained in the body of the expert’s report. However, this does not automatically include previous drafts.

It sometimes happens that a party decides to change experts. This may be due to “expert shopping”, i.e. not liking a particular expert’s opinion and trying to find one that agrees with you. This is, of course, a practice which is to be discouraged.

Historically, the Court has done so by requiring the disclosure of the first expert’s draft and final reports as condition for giving consent to the party wishing to change expert.

In the Court of Appeal case of Vasiliou v Hajigeourgiou [2003] EWCA Civ 236, the Court extended the obligation to disclose in such circumstances to all reports containing the substance of the expert’s opinion. Then, in the High Court decision of BMG (Mansfield) Ltd and another v Galliford Try Construction Ltd and another [2013] EWHC 3183 (TCC), it was extended to other documents in which the expert had expressed opinions, for example, attendance notes prepared by solicitors.

The arguments

The Claimant resisted disclosure of the General Documents on the following grounds:

(a) the material was privileged;

(b) this was not a case of expert shopping bearing in mind that Expert A simply was not performing (allegedly);

(c) having received the letters of instruction, the Defendant had sufficient information.

The result

The High Court rejected all three arguments. Although the material was privileged, this was the price the Claimant had to pay for being given permission to call Expert B to give oral evidence at the trial. The Claimant was effectively being asked to waive privilege in return.

The court found that this was probably not a case of expert shopping, but nevertheless the same principles applied.

The Court is entitled to extend the obligation of disclosure to all documents in which Expert A provided an opinion and therefore included any appropriate attendance notes prepared by the Claimant’s solicitors.

Our comments

It is interesting to note that the Court did not consider that this was a case of “expert shopping”, but nevertheless made such an extensive Order for disclosure. This represents a further extension of the Court’s practice in this area. It also demonstrates the Court’s discouraging approach to bringing in new experts to give evidence. As for the Claimant, it could of course choose not to call Expert B if it did not wish to disclose the General Documents, but perhaps that would be even more damaging to its case.