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B Brief Coyne v Morgan

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Eversheds B-Brief - disclosure implications when changing experts

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B Brief Coyne v Morgan

  1. 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. 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. 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. 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. 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. 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. 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. 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 under licence from third party copyright owners. Eversheds LLP is a limited liability partnership.

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