Judge considers whether report of first expert should be disclosed as a pre-condition for being allowed to call a second expert
The defendants' expert on Peruvian law withdrew shortly before trial because of ill-health. As the time for exchange of expert evidence had passed, the defendants sought an extension of time in order to instruct a new expert. The claimants accepted that the defendants should be able to instruct a new expert but asked the court to impose a pre-condition that all the reports produced by the first expert instructed by the defendants should be disclosed.
Stuart-Smith J noted that, as the defendants needed an extension of time, the court had power to impose a condition for the extension. He went on to hold that the pre-condition should not be imposed because "this is not a case where there is any sound basis for concern about undesirable expert shopping" or an abuse of process by the defendants. The expert had had the misfortune to become unwell. Nor was there a need to take steps to ensure that all useful material is made available to the claimants or the court. It was to be expected that there will be some differences of opinion between different experts: "It does not follow that the differences will necessarily or even probably assist the court or the opposing party in identifying the correct resolution of any issues that it has to decide. Second, there is equality of arms between the parties because the Claimants have their own expert, in whom they have confidence. There is no reason to suppose that the Defendants' new expert will omit relevant material that might have been included by [the first expert]: in other words, there is no reason to think that disclosure of [the first expert]'s draft report will add usefully to the information that is available to the court and the Claimants".
Nor was there any need to make an order to deter expert shopping in other cases: "anyone competent to conduct litigation knows that, if there is a hint of undesirable expert shopping or that significant relevant material is being withheld, the imposition of the condition will be the usual order".
COMMENT: The emphasis in this case was therefore on the reason for the change of an expert, and the judge found that there is no automatic right to have the pre-condition imposed just because a party wishes to change experts after permission has been given (and, in fact, permission will not be needed in the first place if the expert was not named in the original court order and the court order can be complied with on time with a new expert). However, other recent cases have adopted a different stance. In Coyne v Morgan, it was held that expert shopping need not be proven before the pre-condition can be imposed and that decision was followed shortly afterwards in Allen Tod Architecture v Capital Property , although the judge also commented there that strong evidence of expert shopping will usually be required before other forms of document than a report by the expert (eg attendance notes by solicitors) are ordered to be disclosed.