2 August, 2016
People understand that in Court proceedings no party can call an expert or put in an expert’s report without the Court’s permission.
Where a party wants to change experts after beginning the Pre-Action Protocol procedure the Court usually only agree if the documents and the substance of the first expert’s report is disclosed to the other party. This also usually happens if a party wants to change experts in the proceedings when the Court’s permission will be needed.
The reasoning behind these rules is that any expert owes their duty to the Court not the party instructing them and the concept of finding an expert who favours your case and the “hired gun” mentality does not assist a Court.
The party has to show the first expert’s report, which stops them ignoring expert evidence that does not support their case and deters them from “expert shopping” to try and find an expert who will support their case.
In a recent case of Coyne v Morgan the Judge had an opportunity to look at these issues again and give some general and helpful guidance which will assist parties in the future who were looking to change experts.
The starting point for construction claims
The starting point is that the Courts provide discretion and powers to impose appropriate conditions when giving permission to call an expert or change an expert. Case Management powers of the Court are extremely wide and can be tailored very effectively to the particular facts of each dispute.
In exercising those powers a Court may grant permission to allow a party to use a second expert but usually that will be on the basis that they disclose the first expert’s report and potentially disclose the instructions upon which that report was based.
The Judge re-emphasised that once the Pre-Action Protocol is engaged an expert’s duties are to the Court not to the instructing party and so there is no reason not to disclose that initial report. The wideness of the Courts’ powers are not limited where there is or is not any suggestion of “expert shopping”. Disclosure of the original report from a first expert is not dependent upon any particular factor or finding in relation to “expert shopping”. It is a power which the Court retains and will be exercised in most cases where a second expert is sought.
A useful checklist
The case gives a useful checklist for the exercise of the Court’s powers where a party wishes to change experts, and particularly the usual requirement to disclose an expert’s report after the Pre-Action Protocol has begun. Any expert’s report which is disclosed can of course be considered by the Court and effectively used by either party whether it supports their own case or damages the other party’s case.
It reinforces the important point that the timing and instruction of experts in construction cases is key to the process particularly where an expert’s report will be central to the merits and success of the claim, or where a different expert is sought to replace an original expert.
It makes a clear and warning note that the expert you choose and the instructions they receive are critical to ensure the efficient and effective use of expert evidence. If you get it wrong at the outset you run the risk of showing the other side your first expert’s report and you are put at a potential disadvantage in advance of your case.
Proper consideration of the merits of the claim and the expert evidence which you need to adduce to progress your claim or resist the other party’s claim is a critical consideration in construction claims. The timing of expert instruction when you have been able to identify the exact nature of the expert evidence required and the choice of expert and the appropriate areas of specialism are key tactical considerations can often make the difference between success and failure in construction claims.
This case gives a timely warning that if you get it wrong and seek to change experts after the Pre-Action Protocol has commenced, you do in the knowledge that the original expert’s report and the documents upon which that report was based is almost certainly likely to be disclosed to the other side for good or ill.
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