In Hajigeorgiou  v Vasiliou [2005], the Court of Appeal expressed the view that, where a party wished to switch experts, it was reasonable to infer that the first expert’s "interim draft report" contained the substance of that expert’s opinion and if permission was needed to rely on the evidence of the second expert, a pre-condition to the granting of such permission would be the disclosure of that draft interim report.

That view was aimed at preventing "expert shopping" (ie where a party changes experts after receiving an unfavourable report from the expert which it first instructed, or losing confidence in that expert). Of issue in this case is whether there is any general principle that the (draft) report of the first expert must be disclosed in all circumstances where a party changes experts, and even where there has been no expert shopping. (Here, the expert had decided that he no longer wished to act for the defendants, even though the defendants wanted him to continue acting for them).

The judge concluded that prior caselaw has not established that "expert shopping" must be proven before the court will exercise its general power or discretion to impose a condition of disclosing the first expert's report, when giving permission to rely on a second replacement expert. In this case, there were two factors which indicated that the court should order disclosure of the first expert's draft report (and either on its own was sufficient to impose the condition):

  1. The first expert had already produced a draft report in the context of proceedings previously issued; and
  2. the first expert had discussed the expert issues in the case and subsequently met with the other side's expert.

The judge found no evidence of expert shopping in this case. Any reference to WP discussions between the first expert and the other side's expert was to be redacted from the draft report: "what is to be disclosed is the substance of the [first expert's] opinion on the expert issues in the case as set out in such draft report". The defendant was also not required to disclose attendance notes recording the substance of conversations between the expert and the instructing solicitors.