Beware if you shop around for an expert, as the court may demand that you reveal the reports that you rejected

Given the impact of adjudication and the emphasis on the “commercial best practice” of mediation, it is now common to obtain preliminary advice from an expert before court proceedings. Such “pre-action experts” play a vital role in providing privileged advice on the merits of a action. In many cases, the experts will subsequently be instructed to “prepare evidence for the purpose of court proceedings”. However, be aware that you may be required to provide your opponent with those experts’ reports.

A turning point in the common law?

In the case of Andrew Carruthers vs MP Fireworks and Balfour Convenience Stores, (Bristol county court, 26 January 2007), recorder Moxon-Browne QC decided that the court was entitled to order disclosure of an expert report procured before litigation had started as a condition of giving permission to rely on evidence from a different expert at trial.

Previous cases had only dealt with this issue of “expert shopping” after litigation had started and the courts had emphasised that in those circumstances it was to be discouraged. Carruthers is significant because it established that there is no distinction between the court’s powers pre or post the issue of proceedings. This means the court can require disclosure of previous versions and/or previous reports from other experts as a condition to permission to adduce expert evidence. This case provides a tangible warning about “expert shopping” at any time.

The claimant did not explain why he did not disclose the first report so the judge said it was fair to infer the claimant was ’expert shopping’ and ordered disclosure of previous reports

Carruthers involved a personal injury action relating to damage caused by an exploding firework. Before bringing a claim, the claimant instructed a pyrotechnics expert to issue an initial report. The defendant’s solicitors were told that the expert had been instructed and the claimant gave an undertaking that the testing of the remains of the fireworks would be non-destructive. After proceedings had commenced, the claimant decided not to rely on the contents of the report. Instead, it applied for permission to rely on the evidence of a different expert. The claimant did not explain why he did not wish to disclose the first report. In light of this, the judge said that it was fair to infer that the claimant was “expert shopping” and ordered disclosure of previous reports.

Clearly, following Carruthers, it cannot be assumed that expert reports will be covered by privilege, or that privilege over the report will not have to be waived. This is especially in light of the fact that the application of the decision may extend to draft reports. In Vasiliou the court considered whether its power to order disclosure could extend beyond the final report. It was decided that the court’s power could extend “at least to the first expert’s report containing the substance of his opinion”. The court therefore considered that the trial judge was justified in deciding a draft report should be disclosed.

It is arguable that Carruthers is restricted to its own particular facts. This led the judge to comment that “where as in this case an expert has been instructed to perform tests on an exhibit open justice and fairness will usually demand that the results of those tests should be put before the other experts and the court. This will especially be so where there is a perception that those tests may have caused some physical alteration to the exhibit in question”. He added that this could give rise to perceived injustice, and was another reason to order disclosure of the pre-action report.

However, it is easy to envisage similar cases where experts will be required to perform tests on exhibits. It is, therefore, particularly concerning for construction practitioners that the judge has said that justice will require the disclosure of expert opinions where tests on exhibits have been performed, even when those tests are non-destructive and performed before a claim has even been issued.

Although Carruthers is not binding, it is advisable to choose experts carefully and bear in mind that their opinions may need to be disclosed at a later stage. Exposure can be limited by not giving experts privileged documents and discussing initial advice orally. Particular care needs to be taken where tests on exhibits are being performed where the court is more likely to order disclosure in the interests of fairness.

Emily Busby and Katherine Robinson are in the construction and engineering team at Jones Day