England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
TECHNOLOGY & CONSTRUCTION COURT

1. The application

By an application notice dated 5 July 2016, the defendant applied for specific disclosure of (a) the claimant's letters of instruction to its first expert; (b) the claimant's letter of instruction to its new expert, Prof John Roberts; and (c) any report, document and/or correspondence in which the substance of the expert opinion of the first expert was set out, whether such was in draft or final form. The defendant stated that the application arose out of the claimant's late and unexpected change of structural engineering expert, and further asked for an order that permission for the claimant to rely upon the expert report of Prof Roberts dated 24 June 2016 was to be conditional upon the claimant disclosing the documents listed above.

2. In response to the application the claimant has disclosed both those letters of instruction, together with the report of its first expert dated 12 February 2016. However, the claimant has declined to disclose any further material.
3. As set out in its evidence in reply, and as developed in paragraph 15 of Miss McCafferty's written submissions, the defendant continues with its application in respect of the following:

(1) the notes attached to the e-mail from the claimant's first expert to the claimant's solicitors dated 19 December 2014: see paragraph 14 of the witness statement of Neil Frankland, where Mr Frankland states that "it was not however until 19 December 2014 that (the first expert) came back to us with responses to some of the questions that had been put to him by counsel" and page NF1/15 of the exhibit thereto, where the first expert writes "please find attached my notes to date";

(2) the preliminary report attached to the e-mail from the claimant's first expert to the claimant's solicitors dated 6 July 2015: see paragraph 24 of the witness statement of Neil Frankland, where Mr Frankland states that the first expert "provided us with a summary of his views", and page NF1/28, where the first expert described the document as "my preliminary report to date";

(3) any document within which the claimant's first expert provided his views prior to the mediation between the parties which occurred on 12 April 2016: see paragraph 15.3 of Miss McCafferty's note, where she states that "it is unclear from exhibit NF1 how those views were provided, but to the extent that those views were provided in writing (and) set out the substance of (the first expert's) views, (they) should be disclosed". See in this regard paragraph 36 of the witness statement of Neil Frankland, when Mr Frankland states that "... we needed to get (the first expert's) input to the mediation with the defendant. He was ultimately unable to attend the mediation but ... he did provide his views on matters raised by counsel, and he did support the contentions made in the claimant's mediation paper."

4. The claimant resists disclosure of those further documents essentially on three grounds. The first is that each of those documents is privileged, and thus should not now be the subject of an order for disclosure. The second is that in the circumstances of the case the claimant has now disclosed sufficient material to provide a proper basis for the court to permit the claimant to call Prof Roberts as its expert witness at the trial of this action, and in such circumstances it is not necessary and/or proportionate to order the claimant to disclose any further material in order to permit the claimant to call Prof Roberts at trial. The third is that, on the evidence, this is not a case where the claimant has been "expert shopping", in the sense of it having obtained an opinion and/or a report from its first expert which it regarded as unfavourable, and now seeks to adduce the opinion and/or a report from Prof Roberts in place of its first expert; in such circumstances the claimant should be given permission to adduce expert opinion evidence from Prof Roberts without having to disclose the further material sought by the defendant.
5. As directed in the course of the oral hearing, I shall refer to the claimant's first expert as "expert A", and to Prof Roberts either by name or as "expert B".
6. The background

The case concerns a project to renovate Barnsley Civic Hall. The employer was Barnsley MBC ("Barnsley"); the claimant was engaged by Barnsley to provide:

"... a one-stop construction management service under which (the claimant) would be Barnsley's architect, design consultant and services consultant. Agreement was reached in January 2005 ... although the appointment was not reduced to writing until 14 September 2006". In turn, the claimant retained the defendant "... to provide it with structural engineering advice and other services ... (that) agreement was never reduced to writing".

The claimant's case is that:

"... after a number of smaller 'structural' issues had arisen, the project hit very serious problems in mid-2007, when weaknesses in the walls and foundations were encountered, particularly around grid line E. The project was delayed and as a result of those delays (the contractor) was granted extensions of time."

See paragraphs 6, 8 & 11 of Mr Patten QC's written submissions.

7. In her written submissions Miss McCafferty summarised the present proceedings as follows:

"… this case concerns a claim in professional negligence against (the defendant) a structural engineer, by the claimant, an architect who was engaged ... in connection with the renovation and expansion of the Civic Hall in Barnsley .... Barnsley brought a claim in professional negligence against (the claimant) in arbitration proceedings, which was settled in October 2015. (The defendant) denies liability and causation, and challenges the reasonableness of the settlement sum that (the claimant) agreed with Barnsley."

8. Barnsley's initial letter of claim against the claimant was dated 19 January 2009. The claimant sent its separate letter of claim against the defendant almost exactly a year later, on 20 January 2010. The parties then agreed a series of standstill agreements. However, on 13 December 2013 the claimant issued these proceedings against the defendant. On 10 April 2014 the claimants served both the claim form and particulars of claim; on 4 September 2014 the defendant served its defence.
9. However it was not until 16 September 2014 that the claimant instructed expert A. In paragraph 12 of his witness statement Mr Frankland explained that:

"... before instructing (expert A) we did not seek preliminary views from him. The only enquiries we made from him were as to his expertise and his availability."

Mr Frankland then exhibited a copy of the claimant's solicitors' instructions to expert A dated 16 September 2014. It thus appears that the notes which expert A provided on 19 December 2014 were prepared pursuant to those instructions.

10. Between 20 May and 18 June 2015 the claimant's solicitors pressed expert A for "his written report", but it was not forthcoming: see paragraph 22 of Mr Frankland's witness statement. In paragraph 23 of his witness statement he stated:

"(Expert A) eventually responded on 18 June 2015 to say that (effectively) his report remained a work in progress ... My colleague ... chased again for the draft report on 23 June 2015 only to be told it still was not available."

In paragraph 24 he stated:

"(Expert A) was chased again on 1 July and eventually on 6 July he provided us with a summary of his views ..."

That "summary" is what expert A described as his "preliminary report" in his e-mail to the claimant's solicitors dated 6 July 2015 at NF1/28.

11. Meanwhile, Barnsley commenced arbitration proceedings against the claimant. Barnsley's points of claim in that arbitration were dated 27 July 2015: see paragraph 21 of the first witness statement of Sheena Sood. It was against that background that the first CMC was held on 3 September 2015, and a detailed order for directions was made which provided a procedural timetable through to trial. As it happened, the arbitration between Barnsley and the claimant was settled for approximately £2 million shortly after that first CMC, on 14 October 2015. The claimant now seeks to recover that settlement sum in these proceedings.
12. The parties then served amended statements of case in November 2015. The claimant held a conference with expert A on 12 January 2016, following which the claimant's solicitors sent a further or supplementary letter of instruction to expert A: see paragraph 30 of Mr Frankland's witness statement. Shortly afterwards, on 12 February 2016, expert A produced what Mr Frankland describes as "a draft report": see paragraph 34 of his witness statement; that document is produced at pages NF1/55-71.
13. It is against that background that Mr Frankland describes the claimant's decision to change experts in paragraph 35 of his witness statement, where he states:

"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. We discussed the matter at length with leading counsel. 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 that this was a risk we had to take."

14. A mediation hearing in these proceedings was arranged to take place on 12 April 2016. In paragraph 36 of his witness statement Mr Frankland stated:

"Whilst we were facing this decision we needed to get (expert A's) input for the mediation with the defendant. He was ultimately unable to attend the mediation but, with the assistance of someone else from his office and after much pressing (and which ultimately proved to be the final nail in relation to the decision to change), he did provide his views on matters raised by counsel, and he did support the contentions made in the claimant's mediation paper. I do not waive privilege in respect of these matters."

It is in respect of those views of expert A that the defendant seeks disclosure if they were in written form: see paragraph 15.3 of Miss McCafferty's written submissions. The claimant then instructed Prof Roberts on 18 April 2016: see paragraph 36A of Mr Frankland's witness statement.

15. The present state of these proceedings

This application was heard on 29 July 2016, which was the occasion of the pre-trial review. The trial is listed for nine days to commence on 4 October 2016.

16. Jurisdiction

The main order for directions, which was made at the first case management conference on 3 September 2015, gave the parties permission to adduce expert opinion evidence by reference to discipline, rather than by reference to named experts. It also provided that a party seeking to call expert evidence orally at trial had to apply for permission to do so before pre-trial checklists were filed: see paragraph 20 of that order. In that context, it became common ground at the hearing of this application (DG/152) – pace the submission made by Mr Patten QC in paragraph 37 of his written submissions that this was not a case where the claimant needed permission to change its expert – that, as an incident of granting permission to call an expert witness to give evidence orally at trial, the court had the power to impose conditions upon such permission, such as the conditions sought by the defendant in this application.

17. The law & practice

Earlier this year, in May 2016, I had the opportunity to consider this area of law and practice in Coyne v Morgan and Harrison, which is a case proceeding in the TCC as a specialist list in the County Court sitting here in Birmingham. That decision has been posted on both Bailii and Lawtel websites, and thus both Mr Patten QC and Miss McCafferty were able to refer to it in their written and oral submissions. They referred me to a number of cases, including those referred to in the judgment in Coyne. It is therefore convenient simply to recite those paragraphs in the judgment in Coyne in which I set out the relevant authorities, and the principles which I derived from them. They form the following paragraphs 18 to 32 of this judgment (which coincidentally are the same paragraph numbers of the judgment in Coyne, with the numbering now corrected). I have also added a reference to CPR rule 3.1 (3) (a) in the first principle which I derived, as suggested by Mr Patten QC in the course of his oral submissions; this is the rule which gives the court express power to make an order subject to conditions.

18. CPR rule 35.4

Rule 35.4 provides, insofar as is relevant to this issue, as follows:

"(1) No party may call an expert or put in evidence an expert's report without the court's permission.

(2) When parties apply for permission they must provide an estimate of the costs of the proposed expert evidence and identify –

(a) the field in which expert evidence is required and the issues which the expert evidence will address; and

(b) where practicable, the name of the proposed expert.

(3) If permission is granted it shall be in relation only to the expert named or the field identified under paragraph (2). The order granting permission may specify the issues which the expert evidence should address."

19. The authorities

Counsel referred me to 3 cases in the course of their respective submissions^[1]. It is noteworthy that each of those cases concerns a different area of the law. The first in time was Vasiliou v Hajigeorgiou [2005] 1 WLR 2195; [2005] EWCA Civ 236; this concerned valuation evidence in a claim for breach of covenant in a landlord and tenant case. The second in time was Edwards-Tubb v JD Wetherspoon plc [2011] 1 WLR 1373; [2011] EWCA Civ 136; this concerned orthopaedic evidence in a personal injury case. The third in time was BMG (Mansfield) Ltd v Galliford Try Construction Ltd; [2013] EWHC 3183 (TCC); this concerned architectural evidence in a construction case.

20. In Vasiliou the head note records as follows:

" … the court made a (first) order giving both parties permission to "instruct one expert each in the specialism of restaurant valuation and profitability". The defendant instructed an expert who visited the premises and prepared a draft interim report. Subsequently, deciding that he did not wish to rely on that report, the defendant instructed the second expert and sought the court's permission to rely on his evidence. The judge found that although the (first) order ... had not named the first expert, properly construed it permitted the defendant to instruct the first expert and no other, and that therefore the defendant required permission to rely on the second expert. The judge granted permission on condition that the defendant disclose the first expert's draft report to the claimant."

21. The Court of Appeal held that, on its proper construction, the first order plainly and unequivocally identified the experts only by their field of expertise and not by name, and therefore the terms of that first order did not require the defendant to obtain permission to rely on the evidence of an expert other than the first expert. However, the Court of Appeal went on to consider what would have been the position if the first order had given permission for a named expert.
22. In that context, the court was referred to its earlier decision that year in Beck v Ministry of Defence (note) [2005] 1 WLR 2206. That was a personal injury case in which the claimant sought damages for psychiatric injury. Dyson LJ stated the facts in Beck as follows:

"24. … The court gave permission to each party to call one (unnamed) psychiatrist. The defendants' first psychiatrist examined the claimant and produced a report which the defendants considered to be unsatisfactory. For this and other reasons, the defendants lost confidence in the expert. They asked the claimant's solicitors for facilities for a further psychiatry examination by another expert. This request was refused.

25. The defendants applied to the court for permission to change experts. No point seems to have been taken that the defendants did not need the permission of the court to change experts, because the court had not given permission by reference to named experts. The argument proceeded on the basis that the question was "whether it can ever be appropriate to allow a party to substitute one expert for another without, at some stage at least, being required to disclose the first expert's report": see paragraph 2 of the judgment of Simon Brown LJ. To that question Simon Brown LJ gave this resounding answer:

"26. I do not say that there could never be a case where it would be appropriate to allow a defendant to instruct a fresh expert without being required at any stage to disclose an early expert's report. For my part however I find it difficult to imagine any circumstances in which that would be properly permissible and certainly, to my mind, no such circumstances exist here.

27. It seems to me that there clearly ought to be a condition attached to the order here permitting the defendants to instruct a fresh psychiatrist; namely that they should, on taking up such permission, forthwith disclose Dr Godhead's report upon which they no longer seek to rely."

Ward LJ said …:

"30. Nevertheless, expert shopping is to be discouraged, and a check against possible abuses is to require disclosure of the abandoned report as a condition to try again. I agree, for the reasons given by Simon Brown LJ, that the appeal should be allowed to that most limited extent."

Lord Phillips MR said …:

"35. The answer in this case, and in any case were a situation similar arises, is that proposed by Simon Brown LJ that the permission to instruct a new expert should be on terms that the report of the previous expert be disclosed. Such a course should both prevent the practice of expert shopping, and provide the claimants in the position of Mr Beck with the reassurance that the process of the court is not being abused. In this way justice will be seen to be done."

23. In paragraph 27 of his judgment Dyson LJ held as follows:

"… The court (in Beck) approached the issue that was before it on the footing that the defendants required permission in order to rely on the second expert. That is the basis on which we are approaching the second issue in the present case. The question of principle that was decided in Beck's case was that the court has the power to give permission to a party to rely on a second (replacement) expert which it should usually exercise only on condition that the report of the first expert is disclosed."

In similar fashion Dyson LJ held in paragraph 29 of his judgment:

"The principle established in Beck… is important. It is an example of the way in which the court will control the conduct of litigation in general, and the giving of expert evidence in particular. Expert shopping is undesirable and, wherever possible, the court will use its powers to prevent it. It needs to be emphasised that, if a party needs the permission of the court rely on expert witness B in place of expert witness A, the court has the power to give permission on condition that A's report is disclosed to the other party or parties, and that such a condition would usually be imposed. In imposing such a condition, the court is not abrogating or emasculating legal professional privilege; it is merely saying that, if a party seeks the court's permission to rely on a substitute expert, it will be required to waive privilege in the first expert's report as a condition of being permitted to do so."

24. Edwards-Tubb was a personal injury case. The claimant followed the pre-action protocol procedure for personal injury claims by giving the defendants the names of three orthopaedic surgeons who the claimant might instruct, thus giving the defendant the opportunity to object to any of them. The head note continues the narrative:

"With no objection having been taken, the claimant instructed one of the nominated experts who examined the claimant and made a report. The defendant admitted liability for the claimant's injury, and only the extent of the injury and quantum remained in issue. A few months later the claimant instituted proceedings with particulars of claim supported by the medical report of a different and un-nominated orthopaedic surgeon. That report mentioned that the claimant had seen an orthopaedic surgeon previously. The defendant, while recognising that the earlier pre-action report was a privileged document, applied for its disclosure on the ground that such disclosure should be a condition of the permission the claimant required .... The deputy district judge granted the application, so that reliance on the later report was conditional on disclosure ... of the unused earlier report. The circuit judge allowed an appeal ... discharging the condition on the basis that it impermissibly overrode the claimant's privilege in respect of the earlier report."

25. The Court of Appeal held that the report of the first expert had been obtained in the course of, or context of, the relevant pre-action protocol procedure, and had thus been obtained in accordance with a procedure which had been authorised by the court. The head note stated:

" … while the pre-action expert report obtained by the claimant for the purposes of advice about, and the conduct of, litigation was a privileged document, which he was entitled to keep to himself, the prime duty of such an expert was unequivocally to the court, and once the party had embarked on the pre-action protocol procedure of co-operation in the selection of experts, there was no justification for not disclosing the report of an expert who had been put forward by that party as suitable ... and had prepared a report; and that it was appropriate for the court to exercise the control afforded by rule 35.4 so as to maximise the information available to it, and to discourage expert shopping."

26. Hughes LJ gave the lead judgment of the court, with which both Lord Neuberger MR and Richards LJ agreed. He identified the question of principle involved in the appeal as follows:

"11. The question of principle which this case raises is whether the power to impose a condition on the grant of permission to rely on expert B can properly be employed to require the disclosure of the privileged report of expert A, and if so when. If this is proper, what is being done is not directly to override the privilege, because the claimant can elect to stand upon his right to it. Rather, it is presenting the claimant with a price which must be paid for the leave of the court to rely on expert B; that price is waiver of privilege in relation to expert A."

Then, having reviewed the authorities including Beck and Vasiliou, and having decided that "... there is no difference in principle between the change of expert pre-issue and post issue" Hughes LJ identified the remaining issue as follows: "whether the imposition of a condition or disclosure of the type under discussion should be regarded as an unusual or exceptional order or should be the normal order."

27. Hughes LJ then gave his conclusions as follows:

"30. Authority apart, it seems to me that the imposition of a condition of disclosure is as justified in pre-issue as in post issue cases. I certainly accept that there may be perfectly good reasons for a party to wish to instruct a second expert. Those reasons may not always be that the report of the first expert is disappointingly favourable to the other side, and even when that is the reason the first expert is not necessarily right. That means that it will often, perhaps normally, be proper to allow a party the option, at his own expense, of seeking a second opinion. It would not usually be right simply to deny him permission to rely on expert B and thus force him to rely on expert A in whom he has for whatever reason lost confidence. But that is quite different from the question whether expert A's contribution should be denied to the other party by the fact of who instructed him. An expert who has prepared a report for court is different from another witness. The expert's prime duty is unequivocally to the court. His report should say exactly the same whoever instructed him. Whatever the reason for subsequent disenchantment with expert A may be, once a party has embarked on the pre-action protocol procedure of co-operation in the selection of experts, there seems to me no justification for not disclosing a report obtained from an expert who has been put forward by that party as suitable for the case, has been accepted by the other party as suitable, and has reported. Thus although the instruction of a medical expert is a matter almost of course in most personal injury cases, it is appropriate for the court to exercise the control afforded by rule 35.4 in order to maximise the information available to the court and to discourage expert shopping ...

31. For these reasons I would hold that the power to impose a condition of disclosure of an earlier expert report is available where the change of expert occurs pre-issue as it is when it occurs post issue. It is of course a matter of discretion, but I would hold that it is a power which should usually be exercised where the change comes after the parties have embarked upon the protocol and thus engaged with each other in the process of the claim…."

28. In BMG the claimants claimed damages from both the contractor and the architect in connection with a fire which occurred in their shopping centre in October 2004. The head note, as reported in Westlaw, summarises the facts as follows:

"The claimants' case was that the damage was much more extensive than it should have been owing to inadequate fire protection in the roof space and eaves canopies. Within days of the fire the claimant instructed an expert, an architect in his early 60s, who produced a report in April 2005. It was disclosed to the defendants in November 2006. Both defendants rejected the claim under the pre-action protocol process. After the claim was issued in October 2010, the parties exchanged various documents throughout 2011. In April 2012 the claimants' expert met the defendants' expert witnesses, and in May 2012 there was an unsuccessful attempt at mediation. Thereafter the claimants instructed their legal team to review its position including obtaining a second opinion of the correctness of expert advice; and that expert, who was by then nearing 70, withdrew as an expert.

The claimants applied for permission to call expert evidence from a fresh expert, and to amend their particulars of claim. The defendants submitted that the circumstances of the claimants' expert's withdrawal from the case were suspicious and that the claimants had known since May 2011 that he wished to retire from the case, but had deliberately withheld the information until it had instructed the new expert and obtained a fresh report. They requested, as a condition for the grant of permission to call a new expert, an order that the claimants disclose all undisclosed expert's reports and any communications from the expert to the claimants containing his opinion on the issues in the claim."

29. The decision, again as reported in Westlaw, is summarised as follows:

"H8 Imposing a condition of disclosure of any previous reports ought to be the usual practice where the change of expert came after the pre-action protocol procedure had started. That principle applied to all reports, not only those prepared to use in litigation ... The court's power was not limited to ordering disclosure of an expert's 'final' report; its powers extended to ordering disclosure of other reports containing the substance of the expert's opinion.

H10 There had to be a very strong case of expert shopping to justify a condition that solicitors' attendance notes should be disclosed, otherwise there would be a significant and unjustified invasion of privilege and a considerable increase in litigation costs. The instant case was nothing approaching a strong case. At best there might be an appearance of expert shopping, but any such appearance was faint."

30. In his judgment Edwards-Stuart J found the following facts:

"14 …. Mr Roger Jowett, senior partner of BAP, said that following an unsuccessful mediation in May 2012 Mr Streeter told him that he did not want to continue with the case. Mr Jowett therefore offered to take over his role as an expert. ... An associate solicitor at BLM said that at the time of the meeting it was still the claimants' intention that Mr Streeter would continue to act as the claimants' expert until the conclusion of the trial. She said that it was only on 29 May 2012, about one week after the mediation, that Mr Jowett told her that Mr Streeter no longer wished to act as the claimants' expert.

15 There is no evidence before the court from Mr Streeter, and so I do not know whether his wish to retire was driven by his age or the fact (if it was a fact) that he had had a bruising time at the experts' meeting and/or the mediation, or a combination of all three. On the face of it I can see nothing unreasonable about an expert who, approaching his 70th birthday, wants to be relieved of his duties as an expert in litigation that he could reasonably have expected to have been concluded some years earlier, and which had the immediate end in sight. It is well-known that giving contested evidence as an expert witness in a major trial can be very stressful."

31. Edwards-Stuart J then held as follows:

"24. The decision of the Court of Appeal in Edwards-Tubb suggests that the imposition of a condition of disclosure of any previous reports should be the usual practice where the change of expert comes after the parties have embarked on the pre-action protocol procedure ... that has clearly happened here: however, the difference is that Mr Streeter's report of April 2005 was disclosed before that process began.

28. I am prepared to accept that the conditions that the court can impose on a party applying for permission to call an expert are not limited to an expert's 'final' report (meaning the report prepared for disclosure pursuant to CPR rule 35) but may extend to other reports containing the substance of the expert opinion: see Vasiliou at paragraph 29 to 31.

29. What I regard as more problematic is disclosure of documents such as solicitors attendance notes of telephone calls with the expert which record (or purport to record) the substance of his opinions. There are at least two difficulties in the way of disclosure of such documents, which are of course privileged. The first is that they will probably not record the expert's actual words, but rather the substance of what the solicitor understood the expert to say. The two may not be the same. The second is that the notes may well contain material that is not expert opinion: in this case for example Mr Streeter's views on the other parties experts, and so on.

30. While it may be said that the second difficulty can be overcome by appropriate redaction, as so often happens when confidential or even privileged documents have to be disclosed for one reason or another, this will not prevent the problem that always occurs with such disclosure; namely, that the disclosed passages very often have to be read in the context of the redacted passages in order for the meaning of the disclosed passages to be properly understood.

31. Another problem which arises out of the first difficulty is that BLM may wish to check with Mr Streeter that what they have reported him as saying in a particular attendance note is correct. What is to be done if Mr Streeter does not wish to co-operate or does not agree that the note correctly records what he told the solicitors? It may be that he would have to make a witness statement and, if necessary, give evidence. It is hard to see how the costs of this exercise would be proportionate, even in the context of the case as substantial as this one.

32. These considerations lead me to conclude that there would have to be a very strong case to justify a condition that such expert's attendance notes should be disclosed in addition to any reports or draft report by the expert.

33. In my view this is not a strong case of 'expert shopping' or anything near it …

35. On one view, therefore, this is not a case of 'expert shopping' at all. The first expert had, perhaps not unreasonably in the circumstances, indicated that he wished to withdraw from the case. Mr Streeter had ceased full-time practice in 2008 and Mr Jowett says that by 2011 he was hoping that this litigation would be concluded by the end of that year and that, when agreeing to continue as the claimants expert following his retirement from full-time practice, Mr Streeter did not envisage that the case will continue for as long as it has.

36. Whilst this is second-hand evidence, it is in my view inherently plausible …

38. …. it seems to me that there has to have been 'expert shopping' or at least the very strong appearance of it, before disclosure of the type sought on this application should be ordered. I therefore declined to make an order of the type that the defendants seek.

39. However I will order the claimants to disclose any other report or document provided to BLM by Mr Streeter in which he expressed opinions or indicated the substance of such opinions on the matter in issuing these proceedings…."

32. Analysis

From those authorities I derive 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: that is consistent with both the general way in which CPR rule 35.4 (1) is expressed, and the wide and general nature of the court's case management powers, in particular those set out in CPR rules 3.1 (2) (m) and 3.1 (3) (a).

(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: see Dyson LJ at paragraphs 27 and 29 of his judgment in Vasiliou.

(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: see Hughes LJ at paragraph 30 of his judgment in Edwards-Tubb.

(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. See the approach of Hughes LJ in Edwards-Tubb, in particular at paragraph 30 of his judgment when referring to the range of circumstances which might lead to a change of expert, and Edwards-Stuart J in BMG; both those judges found that the fact that an expert had produced a report in the course or context of a relevant pre-action protocol process was a critical or decisive factor, rather than there having been any instance of 'expert shopping'.

(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: see paragraphs 29-32 of the judgment of Edwards-Stuart J in BMG.

33. Bearing those principles in mind, it is now convenient to turn to consider the three issues raised by Mr Patten QC in answer to the application.
34. Privilege

As Hughes LJ pointed out in paragraph 19 of his judgment in Edwards-Tubb there was no discussion of privilege in any of the judgments in Beck. He went on to state:

" … but it is simply impossible that everyone in the case, counsel and judges at three ascending levels of court, forgot the elementary proposition that the report of Dr A was privileged. The reasoning quoted above makes clear the court's decision that it is nevertheless legitimate, indeed desirable, to attach to the kind of court order there under consideration a condition requiring the disclosure of a discarded expert report, with the two objects of (a) discouraging expert shopping and (b) making available to the other party, and thus to the court, an expert report on the issue in the case."

35. It is also clear, with respect, that Dyson LJ had the issue of privilege in mind when he handed down the judgment of the court in Vasiliou. In paragraph 28 of this judgment he referred to, and cited from, the judgment of Longmore LJ in Jackson v Marley Davenport Limited [2004] 1 WLR 2926, where Longmore LJ stated as follows:

"13. There can be no doubt that, if an expert makes a report for the purpose of a party's legal advisers being able to give legal advice to their client, or for discussion in a conference of a party's legal advisers, such a report is the subject matter of litigation privilege at the time it is made. It has come into existence for the purposes of litigation. It is common for drafts of expert's reports to be circulated among the party's advisers before a final report is prepared for exchange with the other side. Such initial reports are privileged.

14. I cannot believe that the CPR were intended to override that privilege. CPR rule 35.5 provides that expert evidence is to be given in a report unless the court directs otherwise. CPR rule 35.10 then changed the previous law by providing in paragraph (3) that the expert's report must state the substance of all material (whether written or oral instructions) on the basis on which the report was written. By paragraph (4) it is moreover expressly provided that those instructions shall not be privileged. But the reference in rule 35.10 to 'the experts report' is, and must be, a reference to the expert's intended evidence, not to earlier and privileged drafts of what may or may not in due course become the expert's evidence."

36. To my mind, the answer to the point raised by Mr Patten QC is to be found in paragraph 29 of Dyson LJ's judgment in Vasiliou, cited above, the last part of which provides:

"… if a party needs the permission of the court to rely on expert witness B in place of expert witness A, the court has the power to give permission on condition that A's report is disclosed to the other party or parties, and ... such a condition will usually be imposed. In imposing such a condition, the court is not abrogating or emasculating legal professional privilege; it is merely saying that, if a party seeks the court's permission to rely on a substitute expert, it will be required to waive privilege in the first expert's report as a condition of being permitted to do so."

37. That point resonates with paragraph 11 of the later judgment of Hughes LJ in Edwards-Tubb, also cited above, but repeated here for convenience:

"11. The question of principle which this case raises is whether the power to impose a condition on the grant of permission to rely on expert B can properly be employed to require the disclosure of the privileged report of expert A, and if so when. If this is proper, what is being done is not directly to override the privilege, because the claimant can elect to stand upon his right to it. Rather, it is presenting the claimant with a price which must be paid for the leave of the court to rely on expert B; that price is waiver of privilege in relation to expert A."

38. In my judgment there is no difference of substance between the position which obtains where the condition to be imposed is (a) disclosure of the previous report (in the form of a final and/or signed and/or Part 35 compliant report) of expert A, or (b) disclosure of any earlier draft or provisional report, or other relevant document, produced by expert A in which he sets out the substance of his opinion on the issues in the case, which would not have been discloseable had expert A remained the expert witness of the applying party. Accordingly, I do not find the fact that any of the documents presently sought to be disclosed are or may be cloaked with the cover of privilege is a reason for them now not to be disclosed as part of the price which the claimant will have to pay in order to call expert B as its expert witness at trial.
39. Has sufficient material now been disclosed?

There is a deal of interplay between this submission and Mr Patten QC's first submission. Mr Patten QC submitted that (a) in all the circumstances of the case, the claimant has now disclosed sufficient material to provide a proper basis for the court to permit the claimant to call Prof Roberts as its expert witness at trial, and in such circumstances it is not necessary and/or proportionate to order the claimant to disclose any further material as the price of such permission; and (b) the court should be careful or wary of directing earlier draft reports to be disclosed, for the reasons set out by Edward Stuart J in BMG.

40. Miss McCafferty referred to paragraph 30 of the judgment of Dyson LJ in Vasiliou as authority for the proposition that the court has power to order disclosure not only of expert A's final report (in the sense of it being a signed and/or Part 35 compliant report), but also of any earlier or draft report, as a condition of giving permission to the applying party to rely on new expert B. Dyson LJ held as follows:

"A question that was not considered in Beck's case is whether the condition of disclosure should relate only to the first expert's final report, or whether it should also relate to his or her earlier draft reports. In our view it should not only apply to the first expert's "final" report, if by that is meant the report signed by the first expert as his or her report for disclosure. It should apply at least to the first expert's report(s) containing the substance of his or her opinion."

41. I accept Miss McCafferty's submissions in this regard. In my judgment the court's power is not confined to directing disclosure of expert A's final and/or signed and/or Part 35 compliant report as a condition of permitting the applying party to rely on new expert B, but extends to any earlier draft or provisional report, or indeed to any other relevant document, in which expert A has expressed his or her opinion on the issues in the case.
42. I bear in mind the point made by Coulson J in Odedra v Richard Ball [2012] EWHC 1790 that "... there could be no general rule that everything is discloseable, regardless of privilege": see paragraph 48 of Mr Patten QC's written submissions. As set out in principle (4) in Coyne: the power of the court is one to be exercised reasonably on a case-by-case basis, in each case having regard to all the circumstances of the particular case. In the circumstances of the present case, the evidence indicates that expert A's notes and preliminary report are documents in which he expressed his opinion on the issues in the case. Accordingly, that power is to be exercised reasonably by ordering disclosure of expert A's notes and preliminary report as a condition of permitting the claimant now to rely on expert B.
43. Has there been "expert shopping", and if so, what is its effect?

Miss McCafferty's primary submission was that it is not necessary for the defendant to establish that the claimant has been expert shopping in order to found the jurisdiction of the court to impose a condition of disclosure on any permission to the claimant to call expert B at trial. Her secondary submission was that, on the evidence, there was sufficient evidence either of expert shopping, or the appearance of expert shopping, to found such jurisdiction.

44. Mr Patten QC submitted that, on the evidence, this was not a case of expert shopping: the reason for the claimant wishing to change from expert A to Prof Roberts related to practical matters, in particular the ability of expert A to produce a Part 35 compliant report of sufficient depth in the time requested, rather than any dissatisfaction with the substance of his opinion.
45. I have come to the conclusion that this is either not a case of expert shopping or, if it is, then it is only so to a faint degree. There is an inherent problem with the use of the expression "expert shopping". It inevitably carries the pejorative connotation of its use at one end of the scale, namely in circumstances where a party has become dissatisfied with the substance of the opinion of expert A, and seeks for understandable and/or reasonable reasons to obtain a more favourable opinion from new expert B. But, as Hughes LJ explained in Edwards-Tubb, there is a wide range of circumstances in which a party may wish to change its expert, for example - as was the case in BMG - the retirement from practice of expert A. Nevertheless, as in BMG, even in a case where there is only a faint degree of expert shopping, the court may still direct disclosure of material produced by expert A in which he or she expresses his or her opinion on the issues in the case as a condition of permitting the applying party to rely on new expert B.
46. With those considerations in mind, I shall direct disclosure of any document in which expert A provided his opinion on the issues in the case prior to the mediation between the parties which took place on 12 April 2016. To the extent that any other material is contained within any such document, it is to be redacted from such document before the document is disclosed.
47. Conclusion

It follows that, to the extent indicated above, the defendant succeeds in its application. The claimant is permitted to call Prof Roberts as an expert witness at trial on condition that it discloses the first two categories of document sought by the defendant at the oral hearing of the application, together with the third if it exists in documentary form.

48. I shall ask the parties to submit a draft order reflecting the terms of this ruling. If there is need for any further or consequential direction, either party has permission to apply.

DG

04.08.16

Note 1   This is a reference to the submissions which counsel made in Coyne    [Back]