Allen Tod Architecture Ltd v Capita Property and Infrastructure Ltd [2016] EWHC 2171 (TCC)

This case serves as an important reminder that the Courts have a wide discretion to order the disclosure of any expert evidence, including communications with experts and documents produced by experts. Therefore, parties need to be mindful that any communications with experts and any documents produced by experts must be treated as potentially disclosable.

In Allen Tod, the parties had been given permission to call an expert structural engineer. The claimant instructed an expert but lost confidence in him after delays in the production of his report. The claimant instructed a new expert.

The defendant sought disclosure of the claimant's letters of instruction to the original expert and to the new expert, and any report, document and/or correspondence setting out the substance of the original expert's opinion, whether in draft or final form. The claimant had disclosed the letters of instruction and the original expert's report, which was supportive of the claimant's claim.

The claimant submitted that the documents sought by the defendant were privileged and should therefore not be the subject of an order for disclosure. It also argued that it had already disclosed sufficient material, and it had not been guilty of ‘expert shopping’.

However, the Court ordered that the claimant be permitted to call a new expert witness at trial on condition that it disclosed any report or document produced by its original expert, in which its original expert had set out his opinion on the issues in the case, whether in draft or final form. Significantly, the Judge made this order despite finding that this was not a case of ‘expert shopping’.

Key Principles and Practical Implications

This case highlights that disclosure can extend beyond an expert's final or draft report, to other documents and correspondence in which an expert has expressed their opinion.

Disclosure may also extend beyond documents produced by the expert who is currently appointed to a case and disclosure may be ordered in relation to former experts who have been involved at an earlier stage of the proceedings.

Therefore, any communications with experts and any documents produced by experts must be treated as potentially disclosable and should be drafted accordingly. Where possible, communications with experts should also be conducted through legal advisors in order to attract the protection of legal privilege.