CHANGING OF EXPERTS AND EXPERT SHOPPING
Under the new Rules of Court 2021, Order 12 rule 2 provides that no expert evidence may be used in Court without the Court’s approval, and Order 12 rule 3(2) provides that save in a special case, a party may not rely on expert evidence from more than one expert. So, what happens if a party wants to change the expert? This week, we take a look at the case of University of Manchester v John McAslan & Partners Ltd & Anor [2022] EWHC 2750 (TCC) (“UOM v JMP”) to see how it may shed some light on this issue.
Brief facts. In UOM v JRP, the claimant (“UOM”) commenced proceedings against the first defendant (“JMP”) and the second defendant (“LOR”) for breaches of contract relating to the design and construction of a building project ([5]), pertaining to alleged defects in and related to facing brickworks ([12]).
UOM sought permission from the Court to adduce expert evidence from a structural engineering expert (the “New Expert”) ([18]), and LOR submitted that permission should be made conditional on UOM disclosing ([19]):
Any “… report (draft or final), letter, email, note or other document …” produced by UOM’s former experts in which they expressed opinios in relation to the dispute or on issues of “… what would be an appropriate remedial scheme and the reasonableness of UoM's decision to replace the entire outer brickwork”; (“Category 1”) and
Any “… attendance note or other document produced by [UOM’s] past and present solicitors … recording (or purporting to record) meetings, telephone calls and other discussions with [UOM’s former experts] evidencing their opinions on what would be an appropriate remedial scheme and/or the reasonableness of [UOM’s] decision to replace the entire outer brickwork” (“Category 2”)
The LOR claimed that UOM had changed its experts, which was not entirely accepted by UOM ([20]). JMP supported LOR’s position in relation to Category 1, but not Category 2 ([52]).
In this regard, UOM took the position that the documents sought in Category 1 and Category 2 should not be disclosed (see [50]):
Category 1. UOM took the position that LOR had already received the reports prepared by UOM’s former experts. As for other documents, UOM referred to the case of Allen Tod Architecture Ltd (in liq) v Capita Property and Infrastructure Ltd [2016] EWHC 2171 (TCC) to say that there needed to be “… strong evidence of expert shopping before imposing a term that a party disclose documents other than the report of the first expert…”, and that there is no such evidence on the facts of the case.
Category 2. UOM referred to the case of BMG (Mansfield) Ltd v Galliford Try Construction Ltd [2013] EWHC 3193 (TCC) and said that there was no strong case on the facts such that disclosure of solicitors’ attendance notes is warranted.
Change of expert? The key question was whether there was expert shopping. Was UOM seeking to replace the former experts as their opinions were adverse to UOM?
The Court held at [72] – [74] that given the facts of the case, i.e., that UOM does not wish to call evidence from its former experts whose evidence was “… originally deployed to support particularisation of [UOM’s] case…”, the Court’s discretion to impose disclosure conditions on the grant of permission for UOM to call the New Expert was engaged.
However, the Court held at [75] that “… the case is a long way from the sort of abuse or possible abuse of the expert witness process in respect of which the authorities cited above show that the Court is astute to guard its procedure…”.
Openness. The Court held at [75] that UOM’s solicitors’ letter explaining why UOM was not expert shopping showed “… an openness which runs contrary to the hidden abuse which “expert shopping” will typically involve.”
The letter referred to has been set out in [71]. Without going into details, it suffices to note that this letter was in response to an earlier letter from LOR’s solicitors where LOR stated, among others, that they “infer expert shopping” (see [70]). UOM’s solicitors in their letter rejected the allegations and set out UOM’s reasons for not calling the former experts.
Deterioration in health. The Court also held that for one of the former experts, there was sufficient evidence before the Court that the reason why the expert was not called was because his health deteriorated and rejected the suggestion that the reason why he was not called “… is anything other than for health reasons” ([79] – [81]).
Already disclosed. Further, the Court held at [85] that “[w]hat seems to me to matter most on the facts of this case is that the Court, the Defendants and the Third Party should have relevant primary evidence revealed by the investigations available to them. In my judgment the extensive disclosure already given [by UOM] suffices to satisfy any requirement as to the calling of [the New Expert].” As such, the Court held at [82] that the Defendants’ interests were sufficiently protected by the disclosure already given.
Conclusion. What UOM v JMP suggests is that if a party wishes to change his or her expert, it would help to be as transparent as possible on the reasons why the expert is being replaced. The more transparent you are, the less likely it is that an inference would be drawn that the reason for replacing the expert is due to “expert shopping”.
Further, it is relevant to note that extensive disclosure had already been given on the facts of the case. Would the result be different if UOM had not already disclosed their former experts’ reports? It seems possible. After all, if an expert was called to particularise a party’s case, the fact that that party is now seeking to replace the expert would, in the absence of any good explanation, seem to raise red flags.
Therefore, while it bears repeating that UOM v JRP is not a Singapore decision, it is nonetheless a useful decision to bear in mind. Given the absence of a body of case law (at present) on how Order 12 of the Rules of Court 2021 may be applied when it comes to replacement of experts, cases such as UOM v JRP are helpful in assisting solicitors in deciding what steps to take (or what grounds to raise) should their client wish to change the expert (or to oppose such an application).
This publication is not intended to be, nor should it be taken as, legal advice; it is not a substitute for specific legal advice for specific circumstances. You should not take, nor refrain from taking, actions based on this publication. Chancery Law Corporation is not responsible for, and does not accept any responsibility for, any loss or damage that may arise from any reliance based on this publication.