The facts

This case raises interesting points in respect of the ambit of a judge’s discretion in determining whether a new expert report could be permitted as evidence.

The claimant had alleged that she had been abused by a teacher at a seminary in the 1970s. The limitation period for bringing the claim had expired in 1979 and the alleged abuser had died in 1999.

The claimant did not instruct solicitors until 2012 and produced a detailed letter of claim in 2013. The letter of claim was served with an expert report from a doctor but this doctor had then been severely criticised by the High Court in a previous case.

The claimant obtained a report from a second expert and served the report at the end of the year. A formal defence to the claim was served in 2014 and directions were given that fixed a date for trial at the end of 2015.

The claimant instructed a third expert to examine the claimant following a conference with their barrister and the second expert in early 2015. The claimant sought to rely on the report of the third expert along with a supplemental statement.

At first instance, the claimant’s application was refused on the basis that the application was made only 3 ½ months prior to trial. The claimant was given permission to appeal this decision but the claim was later stayed and the existing trial date was vacated.

After the stay had been lifted, the claimant appealed the decision arguing that the second expert had diagnosed the claimant as suffering from narcissistic personality disorder whilst the third expert had identified post-traumatic stress disorder. It was submitted that these opinions were totally different and the claimant should be allowed to rely on the expert of his choice.

Also, the claimant argued that the expert evidence was relevant to quantum and to the limitation issue and the supplemental statement clarified matters, which should have been dealt with in earlier statements.

Decision

The Court of Appeal stated that “expert shopping” was to be discouraged but a party was entitled to rely on an expert of their choice and not one in which they had lost confidence.

The Court of Appeal reiterated the principles from Edwards-Tubb v JD Wetherspoon Plc [2011] EWCA Civ 136 that ordinarily a party would be entitled to rely on an expert of their choice but “expert shopping” was to be discouraged. It was noted that a party should not have to rely on an expert in whom they had lost confidence but the court was to consider the stage of the litigation at the time of the application and any impact there would be on the case as a result of the party changing expert.

It was stated that all the evidence had to be carefully scrutinised and the court’s approach to procedure and to decisions concerning case management should have regard to the overriding objective of dealing with cases justly and at proportionate cost.

The Court of Appeal made clear that there is no unqualified right for a party to change expert and in some cases it may simply be too late for them to do so. Also, it was stated that the courts would have to consider the reasons for the change of expert, the interests of justice and the candour of the application.

The Court of Appeal agreed with the judge that the application had been made at a very late stage and that the introduction of a third expert would have caused considerable disruption to the case and may have resulted in the trial date being lost.

The Court of Appeal held that the judge had been entitled to refuse the claimant’s application and had exercised his discretion within the broad ambit of his case management powers. As a result, the claimant’s appeal of the decision was dismissed.

However, it was noted that the shape of the proceedings had now changed as there was no longer a fixed trial date. As a result, the Court of Appeal held that the claimant should be allowed to rely on the report of the third expert but on the condition that all previous reports were served on the defendant.

In respect of the supplementary statement, it was held that there was no good reason why this should not be introduced and the claimant’s appeal on this point was allowed.

What this means for you

The Court of Appeal reiterated the established principles from Edwards-Tub v JD Wetherspoon Plc [2011] EWCA Civ 136, that “expert shopping” needs to be discouraged. However, in ordinary circumstances a party is entitled to rely on an expert of their choice rather than one in whom they have lost confidence.

The courts will look at the reason for the change of expert, the prejudice caused to the other parties as a result of the change, any impact on the trial date and/or progress of the claim and the need to deal with cases justly and at proportionate cost in accordance with the overriding objective.

In cases where a party needs permission from the court to change experts or to adduce expert evidence; the court will usually require, as a condition of granting such permission, the disclosure of a pre-existing expert’s report, whether this was obtained after proceedings had commenced or during the pre-action protocol. The position will only be different if a party had elected to take advice pre-protocol, at their own expense, so the same justification would not exist for waiving privilege unless there was some unusual factor to alter the position.

It should be noted that the Court of Appeal was not prepared to impose a condition that the claimant had to disclose other documents, such as telephone notes recording conversations with the previous experts, for permission to be allowed for them to rely on the report of a third expert. It can be seen that there was insufficient evidence of “expert shopping” and the Court of Appeal permitted the change of expert as there was no fixed trial date.

Each case will be dependent on its own facts and the reason(s) provided for the need to change expert. In the event that a party is permitted to rely on a report of a new expert, then it is likely that the court will order disclosure of previous reports as a condition to permission being granted.

Strategically, it is wise to avoid making direct or indirect references to a report which you do not intend to disclose but under no circumstances should your opponent or the court be misled or provided with false or misleading information.