Change of expert results in disclosure of previous draft report

In the case of Coyne v Morgan and Another (t/a Hillfield Home Improvement) the Technology and Construction Court had to consider what conditions, if any, should be imposed if a party wishes to change experts when the previous expert no longer wishes to continue in the case. A condition such as the disclosure of the original expert’s report is a commonly imposed condition to prevent “expert shopping”.

The facts in Coyne v Morgan and Another (t/a Hillfield Home Improvement)

Coyne (the Claimant) engaged the Defendants, Hillfield Home Improvement (“Hillfield”) to carry out various building works at his property known as 5 Burgess Croft. Coyne alleged defective work and issued proceedings against Hillfield. Prior to filing the defence and counterclaim, Hillfield instructed a structural engineer as an expert (“Expert A”).

Expert A prepared a draft report in relation to the matter on 10 November 2015 before subsequently informing Hillfield that he did not wish to continue as an expert in this case, as he felt that Hillfield did not have confidence in him. As a result of various discussions throughout November 2015 – January 2016, Hillfield appointed a new expert (“Expert B”).

The Court was asked to decide whether disclosure of Expert A’s draft report should be a condition of allowing Hillfield to produce expert evidence from Expert B, in addition to any other documents between Expert A and Hillfield. The position of Hillfield was that the Court would and should only impose that condition in circumstances where the relevant party was “expert shopping”, where one party obtains a report from one expert, which it finds unfavourable, so “shops around” for an expert who will draft a more favourable report.

Coyne claimed that the Court has a much wider discretion in the way it manages cases and the disclosure of a previous report is not confined to cases of expert shopping. In any event, Coyne believed that Hillfield had been “expert shopping” as they had declined to give a reason for changings experts.

The decision

From previous case law, the Court derived the following principles:

1. “The Court has a wide and general power to exercise its discretion whether to impose terms when granting permission to a party to adduce expert opinion evidence…;
2. In exercising that power or discretion, the court may give permission for a party to rely on a second replacement expert, but such power or discretion is usually exercised on condition that the report of the first expert is disclosed…;
3. Once the parties have engaged in a relevant pre-action protocol process, and an expert has prepared a report in the context of such process, that expert then owes a duty to the Court irrespective of his instruction by one of the parties, and accordingly there is no justification for not disclosing such a report…;
4. While the court discourages the practice of ‘expert shopping’, the court’s power to exercise its discretion whether to impose terms when giving permission to a party to adduce expert opinion evidence arises irrespective of the occurrence of any ‘expert shopping’. It is a power to be exercised reasonably on a case-by-case basis, in each case having regard to all the circumstances of that particular case…;
5. The court will require strong evidence of ‘expert shopping’ before imposing a term that a party discloses other forms of document than the report of expert A (such as attendance notes and memoranda made by a party’s solicitor of his or her discussions with expert A) as a condition of giving permission to rely on expert B.”

The Court held that the draft report of Expert A should be disclosed before Hillfield could rely on expert evidence from Expert B. The reasons for this were that:

• Expert A had produced the draft report in the context of proceedings that had been issued prior to the production of the report; and
• Expert A had discussed the issues in the case and attended a joint inspection with the expert of Coyne.
The Court said that any reference to without prejudice discussions should be redacted from the report prior to disclosure. The Court confirmed that the report should be disclosed even though they had found no strong evidence of expert shopping (Hillfield in fact had wanted Expert A to continue as their expert witness). As the Court did not believe that Hillfield had been expert shopping, Hillfield was not required to disclose any attendance notes, memoranda or any other documents recording the substance of any conversations between Expert A and Hillfield.

Commentary

This case highlights the importance of instructing the right expert. Once an expert is formally engaged, the Court has the power to disclose any report (or draft report!) prepared should the party wish to engage a different expert on the matter.

This disclosure is not limited to situations where the party has been expert shopping, but applies as a general rule, even where it is the expert who no longer wishes to be engaged on the case. Should it be proven that a party has been expert shopping; the Court may even insist that attendance notes, memoranda, or any other documents recording the substance of the expert’s views are to be disclosed.

For further information, please contact the Real Estate Disputes Team at Hamlins.