A recent decision of the TCC suggests that wide disclosure of privileged material is likely to be required where a party seeks permission to change experts part way through proceedings even where there is little evidence of “expert shopping”. This decision highlights the importance of selecting an appropriate expert from the outset of a dispute.
Finding an expert
The use of expert evidence is commonplace in construction disputes. Experts will usually be needed to assist a court, arbitral tribunal or adjudicator as to the quantum of a claim, the analysis of delay, or with regard to discrete technical issues disputed between the parties. The selection of an appropriate expert is often pivotal to the success or failure of such claims. A poor performing expert can result in the dismissal of a claim which might otherwise be sound.
As the present case shows, changing an expert part way through proceedings is unadvisable and will usually be subject to the disclosure of privileged documents relating to the earlier appointment. It is important, therefore, that an appropriate expert appointment is made at the outset of a dispute.
Identifying an appropriate expert can, however, be a time-consuming exercise. Parties will often be well advised to carry out a comprehensive selection process with the assistance of their legal advisers. It will often be advisable to carry out such a process as soon as possible, especially in multi-party proceedings where well-known experts are likely to receive enquiries from more than one party.
Some of the considerations which will generally be relevant to the selection process are:
- Does the candidate hold the appropriate qualifications in the field of expertise concerned?
- Is the candidate an authority in the relevant field of expertise?
- Does the candidate have experience of preparing expert witness reports and being cross-examined on their reports?
- Will the candidate have sufficient time to devote to the case (i.e. he or she may be too popular)?
- Is the candidate user-friendly and able to work well with their instructing solicitors?
Changing an expert
Why would a party wish to change their expert? At one end of the scale, the pejorative answer could be the party wishing to change is “expert shopping” in that the party has become dissatisfied with the substance of the opinion of expert X, and seeks a more favourable opinion from new expert Y. At the other end, it could be for reasons such as the expert has retired or even died. In the recent TCC case of Allen Tod Architecture v Capita Property and Infrastructure, the claimant’s working relationship with its expert had broken down:
“The position with (expert A) had reached the end of the line. Whilst supportive of the claim against the defendant, he was clearly unable to properly manage the documents in the case and express his views with the clarity that would assist the court. He was also unresponsive when we contacted him to review matters…Changing expert at this very late stage was not something we wanted to do…We were aware of the very real risk that if we got another expert he or she might not be supportive of our case, but we felt it was a risk we had to take.”
Consequences of changing an expert
As a way to protect against “expert shopping”, permission from the court to change experts is usually given only on condition that reports written by the first expert, which would otherwise be privileged, are disclosed. In this case, His Honour Judge David Grant concluded that “this is either not a case of expert shopping or, if it is, then it is only so to a faint degree”, but nevertheless ordered the claimant to disclose, as a condition of the court’s consent to change experts, anydocument in which the original expert provided his opinion on the issues in the case. As such the claimant not only had to disclose their letters of instruction to both experts but additionally any report, document and/or correspondence in which the substance of the expert opinion of the original expert was expressed whether in draft or final form.
Conclusions and implications
The court’s decision suggests that even in cases where a party genuinely needs to change experts for reasons unconnected with the substance of an expert’s opinion, permission from the court is likely to be conditioned on broad orders for the disclosure of privileged documents. This should provide added encouragement for parties to ensure that an appropriate selection process is used from the outset and to take swift action as soon as any need to change experts becomes apparent.