The facts

The claimant had been hit by a bus causing her to suffer severe injuries to her head, body and internal organs. A trial on the issue of liability took place in 2014 where it was held that the claimant was entitled to recover 90% of her claim. The remaining issues in dispute were in respect of causation and quantum. In particular, the claimant’s case was that their developmental abnormalities and ongoing disabilities were as a result of the accident.

The claimant’s expert witnesses reported that there had been a causal link between the accident and her ongoing disabilities. In comparison, the defendants’ expert evidence indicated that the claimant’s developmental abnormalities were purely coincidental.

During the course of the proceedings, one of the claimant’s experts retired. As a result, she instructed a new paediatric neurologist to prepare a report and they initially reached a similar conclusion to the previous expert. However, the new expert stated that they could no longer support the claimant’s case after they had reviewed the defendant’s expert evidence.

The claimant subsequently instructed a different paediatric neurologist who provided an unfavourable prognosis stating that the claimant’s developmental abnormalities were not linked to the accident.

The claimant instructed a fourth expert who concluded that she had suffered a brain injury and that it was hard to believe that her disabilities were not related to the accident.

The defendant argued that the claimant was “expert shopping” because she was picking and choosing the most favourable expert reports.

At first instance, the claimant successfully applied for permission to rely on the report of the fourth expert.

The defendant appealed the decision submitting that the claimant was “expert shopping” and should not have been permitted to rely on the report of the fourth expert. Alternatively, it was submitted that the master should have ordered disclosure of the previous reports and then relisted the matter to consider whether the fourth report could be relied on.

Decision

On appeal, it was noted that this was not a case where the claimant had lost confidence in the abilities or knowledge of the expert and there was a distinction to be made between loss of confidence in an expert and an expert changing their mind. It was held that there may be good reason for seeking a second opinion and relying on a report from a different expert.

It was stated that a good reason for wishing to rely on a report of a new expert could include circumstances where a report is disappointingly favourable to the opponent. Also, causation was a highly controversial issue and it was concluded that the master had exercised his discretion well within the ambit of his case management powers when permitting the claimant’s application.

It was held that the master had the discretion to permit the claimant to rely on a different expert as the courts discretion was not limited to cases where a party had lost confidence in an expert. Also, there was no error of law and it was held that the master had correctly focussed on the high value and complexity of the case. Further, the master’s concern in relation to “expert shopping” was reflected by the claimant being required to disclose all underlying reports.

The defendant’s appeal was dismissed.

What this means for you

It is not uncommon for a party to wish to change experts and there will be different reasons as to why a change of expert is required. For example, the litigation may have been going on for some time and the expert may wish to be released from their obligations to the court, the expert may have retired, it may simply become apparent that the expert is not capable and/or the instructing party may have lost confidence in their expert. This does not necessarily mean that the other party is “expert shopping” or that the expert has produced a report that is unwelcome and unsupportive of the other party’s case.

If an expert is named in the order permitting expert evidence to be adduced and a party then wishes to substitute their expert, the court can order for previous expert’s report(s) to be disclosed as a condition to permission being granted for a change of expert. This applies to medical reports that are obtained post issue or pre-issue under the pre-action protocol and this disclosure requirement can include earlier draft or provisional reports.

In this case, the court followed the established principles from Edwards-Tubb v JD Wetherspoon Plc [2011] EWCA Civ 136, where it was made clear that “expert shopping” is to be discouraged but there may be cases where there is good enough reason for a party to seek to change their expert. In Edwards-Tubb, the party seeking to change expert was permitted to rely on the report of a different expert on the condition that they disclosed previous expert reports.

The reason for the change of expert is an important factor that is taken into account by the courts when deciding if a party should be permitted to change expert. In cases where there is a good reason for a change of expert, a party may not be ordered to disclose previous expert reports as a condition to being permitted to rely on a new expert. However, there is a risk that previous medical reports, to include draft and provisional reports, could become disclosable as a condition to the court permitting a change of expert.

In this case, the claimant was arguably “expert shopping” because they had obtained views from different experts and were seeking to rely on the view that best supported their case. However, it was noted that the claimant had a good reason for seeking to rely on a different expert, which was a significant factor that was taken into account when the court agreed to permit their application.

In the majority of cases, the previous expert(s) would have likely been instructed during the course of the proceedings or under the pre-action protocol so will have an overriding duty to the court. As a result, there is a strong argument that these reports should be disclosed, as a condition to permission being obtained to rely on a report from a different expert.

Case law supports that only where there is strong evidence of “expert shopping” will there be a condition on the party seeking to change expert, that they disclose attendance notes and other memoranda because these documents will usually be privileged, may not recite the expert’s actual words and may not be agreed by the expert in terms of what was said.