Eversheds B-Brief - disclosure implications when changing experts

1. Legal Updates from Eversheds’
Lawyer Development Team
B-Brief
Disclosure implications when changing experts
Coyne v (1) Morgan & (2) Harrison (t/a Hillfield Home
Improvement)
17 June 2016
Press To

2. Eversheds LLP | 17/06/2016 |
• 4 March 2015 - Claimant (C) issues claim against Defendants
(D) for defective building work
• July 2015 - Both parties instruct structural engineers, Mr
Duckworth (for C) and Mr Wells (for D). The experts meet on
24 July 2015
• 12 August 2015 - D files defence and counterclaim
• 21 September 2015 - C files reply and defence to
counterclaim
• 20 October 2015 - Mr Wells inspects the property and
discusses claim with Mr Duckworth
• 10 November 2015 – Mr Wells provides draft report to D
Background
Legal Updates from Eversheds’ Lawyer Development Team

3. • D alleged that during 20 October meeting Mr Wells (1) discussed issues
which were not pleaded (but which did now feature in the draft amended
particulars), (2) formed a view on those issues based on what C/Mr
Duckworth said and (3) conducted without prejudice negotiations with C
• D asked Mr Wells to take the above issues into account and to exclude
references to the without prejudice discussions from his draft report
• Mr Wells withdrew his services. He agreed C had misled him, he could
not exclude the without prejudice references and said D lacked
confidence in him
• D asked Mr Wells to stay on board. He agreed, provided his invoice was
paid immediately. The invoice was not paid
• Six weeks later, D contacted Mr Wells, to seek to discuss the case
• Mr Wells refused. He had assumed his services were no longer required
and had taken on other work so had no time to act for D. He also
repeated his concern that D lacked confidence in him
• D instructed another structural engineer, Mr Mason and applied for
permission to rely on his expert evidence
Application to instruct new expert

4. • Under CPR 35.4(1) no party may call an expert without
the Court’s permission
• Did the application constitute expert shopping and
should permission to adduce evidence of Mr Mason be
conditional upon D disclosing Mr Well’s report and any
other material (e.g. attendance notes)?
• Court referred to three cases:
• Vasiliou v Hajigeorgiou [2005]
• Edwards-Tubb v JD Weatherspoon plc [2011]
• BMG (Mansfield) Ltd v Galford Try Construction [2013]
The key issue

5. The court derived the following key principles from the CPR and case law:
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 evidence
under both CPR 35.4(1) and CPR 3
2. The court may give permission to rely on a second, substitute, expert’s report.
That discretion is normally exercised on the condition that the first expert’s
draft report is disclosed – per Dyson LJ in Vasiliou
3. The same analysis applies when an expert has prepared a report during a pre-
action protocol process. That expert then owes a duty to the Court irrespective
of his instruction by the parties – per Hughes LJ in Edwards-Tubb
4. There may be many reasons why a party wishes to instruct a second expert, not
just that the expert’s opinion is disappointingly favourable to the other side.
Even when that is the reason the first expert is not necessarily right. That is
why parties are often allowed, at their own expense, to instruct a second
expert. But that is different from whether the first expert’s report should be
denied to the other party
5. So while the court discourages ‘expert shopping’, the court’s discretion to allow
expert evidence arises irrespective of whether the party has shopped around.
Instead, the discretion is to be exercised reasonably on a case by case basis
6. The court will require strong evidence of expert shopping before imposing a
condition that a party discloses documents, such as attendance notes, in
addition to the report itself – per Edwards-Stuart J in BMG
Key principles

6. • Court granted permission for D to adduce Mr Mason’s expert
evidence
• But imposed a condition that D disclose Mr Well’s report, with
all references to without prejudice discussions redacted
• D was not required to disclose any other material
• On the facts, the Court imposed a condition to disclose Mr
Well’s report because:
(1)Mr Wells had already produced a draft report in the context
of proceedings, which had been issued previously; and
(2)Mr Wells had discussed the expert issues in the case and
attended a joint inspection with Mr Duckworth
• On the facts there was no strong evidence of expert shopping -
it was Mr Wells who decided not to act for D
Decision of the Court

7. Eversheds LLP | 17/06/2016 |
• Where the first expert’s identity has already been disclosed to the
opponent (because he/she is named in the directions or otherwise)
any decision to seek substitute expert evidence should take account
of the court’s wide discretion to impose conditions when granting
permission to adduce expert evidence
• That wide discretion arises irrespective of whether the party has
shopped around and is to be exercised reasonably on a case by case
basis
• Where there is strong evidence of expert shopping, the conditions of
permission may include disclosure of additional documents, beyond
the draft report
Learning Points
Legal Updates from Eversheds’ Lawyer Development Team

8. WARNING
1. For the purpose of abbreviation and presentation, only
the main aspects of the case have been mentioned
2. This information is for guidance only and should not be
regarded as a substitute for research or taking legal
advice
Coyne v Morgan & Harrison (t/a Hillfield Home
Improvement) [2016] EWHC B10 (24 May 2016)
EVERSHEDS LLP 2016. The content and design of this briefing are subject to copyright owned by Eversheds or used
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