If the expert witness you commission comes up with something not entirely to your liking, you might be tempted to shop around for another one. But the court won’t like it

Tony Bingham

I went shopping the other day - Sainsbury’s, for tomato soup. Tricky - so many varieties; I counted 57. Do you go shopping? Some shop for the adjudicator, the arbitrator, even the judge. Then there are those who shop for expert witnesses. It’s rather similar to shopping for a canary, which can sing your chosen song. This is a story about expert witness shopping.

The building work to Stuart Coyne’s house in Solihull became a fraction controversial. One of the worries was about the roof trusses and want of support here and there; size of battens, too. The case was begun in the Birmingham TCC - permission was given to bring expert witnesses on board, so the parties each shopped for an expert structural engineer. The builder’s expert was Mr Wells, and he promptly got on with an inspection and properly met up with the structural engineer expert witness for the claimant. Mr Wells issued his draft report to his client, the builder. Did you spot the mistake just then? Yes, of course, Mr Wells’s customer, paymaster and client is the builder. But that’s not the right way of looking at our expert. His customer is really the court. He is there by the court’s permission, he has estimated his fees to the court, told the court what he is giving an opinion about. The court order will identify who is permitted to be the expert or at least name the specialist field he is to talk about - even, sometimes, spell out the issues this expert is to address. Of course a party chose the expert, but his allegiance is to the court. Awkward, isn’t it?

And when the expert witness doesn’t quite sing the song for his paymaster, the builder, it’s even more awkward. Mr Wells and his client didn’t see eye to eye and Mr Wells withdrew his services. So the defendant’s solicitor sought the court’s permission to instruct a replacement. Up jumped the solicitors for the claimant with an objection. They said the defendant was “expert shopping”. That phrase probably means that the input by a party’s expert is not entirely favourable to his “side”, so he goes out again and prefers to put in evidence this second, presumably better, commentary. The canny objector pointed to a series of court decisions “designed to discourage expert shopping”. The objector reminded the court that it could impose a condition on the grant of permission to rely on a replacement expert - a price to be paid. What is it?

The court will say that since the first expert was put up as suitable and since there were no objections and since the report is issued, it becomes disclosable

Well now, if there is a perfectly good reason for a party to instruct a second expert, there is no price at all. All’s well. In fact, a party can, at its own expense, instruct a second opinion, but then comes the price. It has to disclose the previously reported opinions. The court will say that since the first expert was put up as suitable and since there were no objections and since the report is issued, it becomes disclosable. In an architect’s negligence case a few years ago, the court was asked to accept that a good reason to swap for a new expert had arisen. Somehow this case had dragged on and on and 10 years had slipped by. And being 10 years older, the expert wanted to retire. So he was relieved and a new expert architect engaged without conditions. That was not expert shopping. Have you got the idea?

But if it is a shopping trip, the price can become quite high. The court will not only order disclosure of previous reports but also disclosure of documents such as a solicitor’s notes of telephone calls with the expert and record of opinions expressed. Be careful here; going to those lengths is only for those times when there is a very strong case to justify such an order. Beware.

Judge David Grant in this case of Stuart Coyne vs (1) Alec Morgan & (2) Alex Harrison provides an excellent analysis of the principles applicable:

  • The court’s powers include a wide power of discretion to impose terms when granting permission to adduce expert opinion.
  • The court may give permission for a party to rely on a second replacement expert but usually on the condition that the first expert report is disclosed.
  • Once the parties have engaged in a relevant “pre-action protocol” and an expert has prepared a report in the context of such process, that expert 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.
  • A change of expert after a report in the course of a relevant pre-action protocol was a critical factor for disclosure rather than there having been an instance of expert shopping.
  • Strong evidence of expert shopping is required before imposing disclosure of other documents as well.

In the present case the draft report by the first expert was disclosable. No other documents came within the rule for disclosure. Do you think all this dropped the builder in the soup?

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple