The ‘price’ of expert shopping

In the recent decision of Matthew Rogerson (t/a Cottesmore Hotel, Golf and Country Club) v Eco Top Heat & Power Limited1, Mr Alexander Nissen QC (sitting as a Judge of the High Court) provides yet more reasons to be cautious when it comes to dealing with expert evidence. Katherine Butler discusses the Court’s reasoning when it comes to the ‘price’ to be paid by any party seeking to ‘expert shop’ and, through which, how such practices are to be discouraged.2

The Facts

In June 2018, there was a catastrophic fire at the Cottesmore Hotel, Golf and Country Club (the Claimant), causing millions of pounds worth of damage and business interruption losses. At the time of the fire, Eco Top Heat (the Defendant), a contractor, was carrying out works to install windows in a first floor area, directly above a ground floor tunnel where the fire originated. The Claimant alleged that the fire was started by a) an employee of the Defendant discarding a cigarette or b) a loose spark from an angle grinder being used as part of the works. The Defendant denied these allegations and instead claimed that the fire was started by one of the Claimant’s own employees discarding an unextinguished cigarette.

Shortly after the fire, solicitors for the Defendant confirmed to their counterparts that the “instructed expert for the fire investigation is Mr Nagalingam”. Mr Anil Nagalingam proceeded to visit the site on at least two occasions, one of which was in the company of the experts similarly instructed for the Claimant and his insurer. Further to these visits, Mr Nagalingam attended conferences with his instructing solicitors as well as engaging in correspondence with the other experts through to October 2020.

The Claimant sent its Pre-Action Protocol for Construction and Engineering Disputes (the “Protocol”) Letter of Claim on 4 February 2020. In its Letter of Response, the Defendant made no reference to any expert being instructed on its behalf. Following the issue of proceedings in August 2020, various pleadings had been exchanged and the parties were preparing for the Costs and Case Management Conference (“CCMC”) in March 2021. As part of these preparations, the Defendants presented draft directions which included seeking the Court’s permission to call on the expert testimony of Ms Emma Wilson, and not Mr Nagalingam.

Given this about turn in respect of the Defendant’s forensic fire expert, the Claimant applied to the Court, not in order to challenge the substitution of Mr Nagalingam for Ms Wilson, but to seek conditions for the substitution. Such conditions being the disclosure of reports and/or other records detailing Mr Nagalingam’s opinions as to the cause of the fire.

In resisting this application, the Defendant argued that such conditions were not warranted as this was not a case of expert shopping. Rather, Ms Wilson had been instructed because of her greater experience in respect of cigarette ignited fires. The Defendant further asserted that there was a material difference in the advice procured from an expert in the pre-Protocol period and that it would be unfair to reach so far back in time.  It was also argued that the only document in which Mr Nagalingam asserted any opinion (having not, in fact, produced any reports, draft or otherwise) was the solicitor’s attendance note of a conference in October 2020. The Defendant asserted that it would be a step too far to order the waiver of privilege over such a document, not least because such a note (necessarily authored by another) may not be representative of the expert’s actual views.

The Claimant countered these arguments by stressing what it considered to be clear evidence of expert shopping and pointing to a consistent lack of openness regarding the terms on which Mr Nagalingam was appointed and in what role. The Claimant specifically raised the fact of the interactions between Mr Nagalingam and his counterparts to rebut the assertion that he was involved in an advisory rather than expert witness capacity.

The Law

In Beck v Ministry of Defence3, the Court of Appeal was clear that expert shopping was “undesirable” and to be discouraged. Shortly thereafter, the Court of Appeal considered the form that such discouragement should take in Hajigeorgiou v Vasiliou.4 Here, their Lordships considered the competing arguments between protecting legal privilege as against the benefit to the Court (and potentially the other party’s case) of the reports of any substituted expert being disclosed. The Court ultimately considered that its case management powers could extend to ordering the disclosure of previous advice and/or reports as a condition of the leave required to substitute an expert.  Such an order, as Dyson LJ stated (in obiter comments), would not undermine the overall principle of privilege, but would require such privilege to be waived in the event that the party in question wished to present the evidence of an alternative expert.  Ultimately, the decision rests with the party seeking the substitution.

The 2011 decision of Edwards-Tubb v JD Wetherspoon Plc5, again from the Court of Appeal, was the judgment which began to describe such a condition as the ‘price’ to be paid for the option to switch experts.  Hughes LJ’s judgment also clearly directs that whether a substituted expert’s report is prepared pre or post issue of proceedings was of little or no importance when it came to questions of whether it should be disclosed. In doing so, his Lordship emphasised that an expert’s overriding duty is to the Court and there is, therefore, a high bar to deny access to his or her opinions by reason only of who instructed them.

Whilst, at this point, the rule appears crystal clear, there must always be room for an exception, such as was seen in the case of BMG (Mansfield) Ltd v Galliford Try Construction Ltd6.  In this case, the reason for the substitution was that the expert wished to retire.  In such circumstances, and where evidence can be presented to refute any allegation of expert shopping, no such waiver of privilege and/or disclosure will necessarily be ordered.7 Mr Justice Edwards-Stuart put it succinctly where he held:

“I appreciate that the policy of imposing a condition requiring disclosure of a previous expert’s reports is to deter the practice of ‘expert shopping’, but it seems to me that there has to have been ‘expert shopping’ or at least a very strong appearance of it, before disclosure of the type sought on this application should be ordered”.8

There followed further cases of the lower courts which clarified the principles to be applied in the setting of conditions for substituting an expert. Specifically, that the power extends to requiring the waiving of privilege over previous draft reports, notes or other documents where the first expert expresses his or her opinion on the matter.9 Further, that this power is to be exercised reasonably on a case-by-case basis, having regard to all the circumstances.10 This reasoning was followed and built upon in the   judgment of Gross LJ in Murray v Devenish, where his Lordship laid down two key principles:11

“(1) ordinarily a party will not be deprived of his or her expert of choice and will not be forced to rely on an expert in whom that party has lost confidence; but (2) ‘expert shopping’ is to be and will be discouraged. In applying those principles the court will plainly have regard to the state of the litigation at the time, the consequences of permitting a change of expert and the conduct of the party concerned in the litigation to date. At some point a party having nailed its colours to one expert mast may find that it is simply too late to be permitted to change tack.”

The Decision

Taking the factual circumstances together, Judge Nissen discerned that Mr Nagalingam had been instructed to inspect, evaluate and provide a report concerning the cause of the fire at the Cottesmore Hotel. Further, such an appointment should be made within the remit of CPR 35 for no lesser reason than a party would wish to rely on the evidence of an expert with first hand, detailed knowledge of the site and the issues. Judge Nissen went on to detail the matters which led him to doubt the Defendant’s stance that it was not, in fact, expert shopping. Specifically, there being little, if any, difference in the qualifications of the two experts, the overall lack of openness concerning Mr Nagalingam’s appointment, and the fact that his services were dispensed with following a meeting where views as to causation were expressed.

Judge Nissen also detailed a useful sliding scale to be considered more generally in terms of the extent of the conditions that would be appropriate in given circumstances:

“… there would seem to be a sliding scale where, at one end, might sit a flagrant case of expert shopping simply because a party does not like the damaging views expressed by his current expert, and at the other end might be the unexpected need to replace the expert for objectively justifiable reasons such as illness or retirement of the expert in question. The closer the circumstances are to the former, the more likely it is that a Court will impose conditions commanding a high price e.g., in respect of the waiver of any privilege  and the scale of material to be disclosed. The closer they are to the latter, the less onerous such conditions, if any, as may be imposed will be. A faint appearance of expert shopping would not justify the disclosure of solicitor’s attendance notes of telephone calls with the expert, not least because of the risk that they do not properly record the expert’s actual words.”12

In making his order, Judge Nissen clearly considered that the circumstances here went well beyond a “faint appearance of expert shopping” but rather one where “the inference [of expert shopping] can clearly be drawn”. Accordingly, it was ordered that:

a)         The Defendant was permitted to rely on the expert evidence of Ms Wilson in substitution for that of Mr Nagalingam; and

b)         As a condition of such, privilege is to be waived in respect of the solicitor’s attendance note of the October conference.

Commentary

Matters concerning expert evidence, both in terms of expert conduct and the nature of the evidence itself, have been fertile ground for the TCC in recent years. Judge Nissen’s decision and the above authorities, together with other cases discussed in Huw Wilkins’ companion article in the 2021 Review, ‘Expert Evidence: English courts send a message to experts (and their instructing solicitors), show that the Courts are becoming much more interventionalist when it comes to expert testimony.

The direction of travel in the case law indicates that judicial patience with experts (and associated legal teams) is wearing decidedly thin. As was seen in the scathing rebuke offered by Coulson J (as he then was) of the expert quantum evidence offered in Van Oord v Allseas,13 the significant control over the scope of expert testimony exerted by Judge Nissen in Wattret v Thomas Sands Consulting Ltd14 and the complete exclusion of expert evidence, mid-way through a trial, for breaches of the Pre-Trial Order in Dana UK Axle Ltd v Freudenberg FST GmbH.15>

The stance taken by the Courts in this area is not surprising. The quality and credibility of expert evidence, particularly in the highly technical field of construction, can decide entire disputes.  It is, therefore, vital that rules and conditions are enforced in order to maximise the assistance offered to the Court whilst maintaining a level playing field between the parties. Experts and lawyers alike need to work well within these rules to avoid the sanctions and conditions which the Courts are more than ready to impose. Stepping outside the rules can have serious repercussions for a client’s case and can be no less devastating to an expert’s reputation.

We have (repeatedly) been warned…

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• 1. [2021] EWHC 1807 (TCC)
• 2. Following the decision in Beck v Ministry of Defence [2003] EWCA Civ 1043
• 3. Ibid
• 4. [2005] EWCA Civ 236
• 5. [2011] EWCA Civ 136
• 6. [2013] EWHC 3183 (TCC)
• 7. This reasoning was following in the case of Vilca v Xstrata [2017] EWHC 1582 (QB) concerning an expert stepping down due to ill health
• 8. Ibid, at paragraph 38
• 9. Allen Tod Architecture Ltd v Capita Property and Infrastructure Ltd [2016] EWHC 2171 (TCC)
• 10. Coyne v Morgan [2016] BLR 491
• 11. [2017] EWCA Civ 1016, at paragraph 15
• 12. At paragraph 47
• 13. [2015] EWHC 3074 (TCC)
• 14. [2015] EWHC 3455 (TCC)
• 15. [2021] EWHC 1413 (TCC)