CHANGING OF EXPERTS AND DISCLOSURE OF DRAFT REPORTS
In our earlier blog, we discussed the case of University of Manchester v John McAslan & Partners Ltd & Anor [2022] EWHC 2750 (TCC) on changing of experts and concerns of expert shopping. This week, we look at the case of Avantage (Cheshire) Ltd & Ors v GB Building Solutions Ltd & Ors [2023] EWHC 802 (TCC) as it sheds light on when previous drafts of an expert’s report would not be ordered to be disclosed.
Brief facts. In Avantage (Cheshire) Ltd & Ors v GB Building Solutions Ltd & Ors [2023] EWHC 802 (TCC) (“Avantage v GB”), the claimant sought to call a new expert, Dr Neil Ketchell, in place of two experts, Ms Sarah Hooton, a forensic scientist, and Mr Peter Wise, a fire engineer ([1]).
While the defendants did not oppose in principle the application in respect of Ms Hooton, the defendants said that the court should grant permission subject to the condition that Ms Hooton’s earlier reports, opinions and investigation notes be disclosed ([2]).
However, the defendants opposed the application in respect of Mr Wise ([3]).
Ms Hooton. As set out in [18] – [20], there was no challenge to the grounds on which the claimants sought to replace Ms Hooton, namely, her serious illness which prevented her from continuing to participate in the proceedings.
However, the issue was whether the following 5 categories of documents should be disclosed (see [20] and [21]):
“i) Ms Hooton's expert reports, including drafts of the same, prepared for the purposes of the proceedings [Category 1];
ii) Ms Hooton's site inspection reports or notes, including those taken at or following the investigations / inspections performed by Ms Hooton of Beechmere and sister properties (including an inspection of Willowmere on 20 August 2019, a three-day intrusive investigation at Beechmere in November 2019 and a further two-day site investigation at Beechmere prior to its demolition in January 2020) [Category 2]; and
iii) Ms Hooton's notes of any interviews with witnesses or potential witnesses of fact, including in relation to the interview of the resident of Flat 131, Mr. David Scott, in February 2020 and subsequently as confirmed in Mr Scott's statement [Category 3].
…
i) any other report (draft or final), letter, e-mail, note or other document produced by Ms Hooton in which she expressed opinions in relation to the dispute, including as to the cause, origin and spread of the fire [Category 4];
ii) any attendance notes produced by the claimants' solicitors recording meetings, telephone calls and other discussions with Ms Hooton evidencing her opinion on the cause, origin or spread of the fire. [Category 5]”
The court held at [22] – [23] that in the circumstances of the case, where “[n]o criticism can be made of the claimants in changing experts and there is no question of expert shopping”, it would be “unjust” to impose conditions on the claimants to disclose Ms Hooton’s reports, draft reports or other documents setting out her opinions (Category 1), including the documents in Category 4 and Category 5.
However, the court agreed with the defendants that the documents in Category 2 and Category 3 “provide a unique source of valuable information in the case that should be disclosed” ([24]), as they “contain relevant evidence of primary facts, namely the condition of the property in the aftermath of the fire and the presence of defects. That evidence is not available from any future inspection because the remaining part of Beechmere that survived the fire has since been demolished.” ([26]).
Further, the court found that had Ms Hooton continued to participate in the proceedings, she would have referred to such documents and Dr Ketchell would have access to these notes and documents ([27]). Hence, the court found that “fairness and transparency require that this material should be made available to all the relevant experts in the case.” ([28]). The same reasoning applied to the interview materials ([29]).
It is relevant to note that the court stressed at [30] that the reason why the defendants’ requests for an order to disclose Categories 1, 4 and 5 documents is because “there is no impropriety in the claimants' request to change their forensic scientist expert. They have been forced to make the change by the unfortunate illness of Ms Hooton, a matter over which the claimants have no control and for which there should be no court sanction.”
Mr Wise. However, in relation to Mr Wise, the court ordered that the reports by Mr Wise should be disclosed, including any draft reports and documents which set out his opinions ([38]).
Why is there a difference?
The reason is because, as set out in [36], the court noted that the defendants have “legitimate concerns.. that this appears to be an exercise in expert shopping” as there is no dispute that Mr Wise was qualified and available to give evidence, and has carried out substantive work.
Nonetheless, the court was satisfied that this was an appropriate case to allow the claimants to change their experts, as the claimants had informed the court that the reason for the change was that “the claimants are not happy with Mr Wise as an expert. It is in the interests of justice that the claimants should have permission to rely on an expert in whom they have confidence.” See [37].
However, despite this, the court declined to order that the claimants’ solicitors be ordered to disclose attendance notes of their discussions with Mr Wise, as “[s]uch an order would cause practical difficulties in producing redacted versions of the documents that were of any probative value. Further, such an order would constitute an unnecessary invasion of the claimants' privilege in circumstances where there is no suggestion of any culpable behaviour on the part of the claimants or their experts; they are simply unhappy with Mr Wise as an expert.” ([39]).
Conclusion. In our previous blog, we stated 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, since the court would be on guard against “expert shopping”.
Avantage v GB makes clear that just because a party is changing an expert, it should not be taken as granted that the previous expert’s reports, including draft reports, would be ordered to be disclosed. However, as illustrated by how the court dealt with the replacement of Mr Wise, there are situations where the court will order reports, including draft reports and any other documents setting out the expert’s opinion, be disclosed.
Hence, while Avantage v GB is not a Singapore decision, it is likely to be relevant when similar situations arise in Singapore, especially given the current absence of a solid body of case law on how Order 12 of the Rules of Court 2021 may be applied when it comes to replacement of experts, cases.
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