It is not unknown for parties to litigation to change their Experts as the case proceeds. In Edwards-Tubb v JD Wetherspoon decided on 25 February by the Court of Appeal, the Court directed that an earlier Expert's Report had to be disclosed before permission would be given to instruct the new Expert.
The problem in this case stemmed from the requirement in the Civil Procedure Rules for parties to obtain permission before they can call Expert Evidence. Parties often obtain Expert Evidence at the commencement of a case and the results may well determine whether a decision is taken to proceed or not. In this case a report was obtained from one Expert but the claimant chose subsequently not to rely on it and sought permission to rely on a second Expert in the same field. The first Expert's identity had been disclosed during the pre-action protocol process.
The first Expert's Report was privileged from disclosure. However the Court in this case, whilst recognising the privileged status of the Report, decided that, drawing on earlier authority, it was legitimate to make it a condition of granting permission to adduce Expert Evidence that the first Expert's Report should be disclosed.
The policy rationale behind this decision is to discourage the practice of "Expert Shopping," that is to say seeking two or more Experts' Reports in the hope that a sympathetic view will eventually be found. The difficulty the claimant faced is that the defendant became aware during the pre-action protocol process that he had instructed an earlier Expert and sought disclosure of that Expert's Report. The Court accepted that disclosure should be a condition of permission to adduce the evidence of another Expert.
The pre-action protocol In construction cases requires the letter of claim which must be sent prior to commencing proceedings to include the names of any Experts already instructed by the claimant on whose evidence he intends to rely. If, subsequently, a different Expert is instructed by the claimant then the defendant may seek disclosure of the first Expert's Report as a condition for permission being given to adduce another Expert's report. This case indicates that such a condition may routinely be imposed. The position will of course be different if the decision has been made to discard the first Expert's advisory Report before the pre action protocol process commenced.