Expert evidence – “Expert Shopping”

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Coyne v Morgan [2016] BLR 491. TCC, HHJ Grant

Facts

Mr Coyne had a house in Solihull and he hired Mr Morgan’s company, Hillfield Contractors to carry out various building works.  He was not satisfied with the work done and issued proceedings against Hillfield for defective work.  Each side appointed an independent structural engineer to act as expert witness.  The two engineers met and Coyne’s engineer made a number of incorrect statements about roof truss design and building regulation proceedings which Hillfield’s expert took at face value.  Hillfield’s expert wrote a report which relied upon these issues and also referred to without prejudice discussions.

Hillfield complained about his work and was slow in paying one of his bills so he resigned.  They asked the Court for leave to appoint a second expert, which Coyne opposed.

Held:

  1. The Court had a broad discretion in respect of what expert evidence was allowed and whether to permit a change, but would generally exercise that discretion subject to conditions.
  2. Clearly Hillfield had been unlucky in their choice of expert, who had been quick to take offence when they pointed out that he had exceeded his authority in relying upon unsupported statements by the other side and by including without prejudice material in his draft report. They would therefore be ordered to produce his draft report as a condition of leave to appoint a second expert BUT they would not be ordered to give full disclosure of all their file notes, emails and correspondence with the expert.
  3. When the draft report was disclosed to the claimant, it would be redacted to exclude references to without prejudice material.

Comment

  1. Experts do not always understand their role and sometimes try to act as negotiators on behalf of their clients rather than witnesses appointed to assist the Court and to analyse and advise on the pleaded cases of the parties.

Expert shopping” is severely frowned on and will generally promote a full order for disclosure of all the dealings with the original expert.

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