Experts are engaged in the course of litigation to give advice to their clients about technical and valuation issues and to assist the Court by preparing reports which will form the basis of the expert’s cross-examination during the trial.
In the case of Avantage (Cheshire) Limited -v- GB Building Solutions Limited, the High Court had to decide whether two of the Claimant’s experts could be substituted. There had been a fire at a retirement village and the developer of the property which was also the freeholder issued a claim against the building contractors and consultants because the construction of the buildings was said to be defective. The Claimants called a scientist to give evidence about the cause of the spread of the fire and whether this had resulted from the alleged defects. The second expert was instructed to give evidence about whether the property complied with the Building Regulations.
The first expert needed to be substituted because of poor health but the application to replace the second expert who had been instructed to report upon compliance with the Building Regulations disagreed with the Claimant and its witnesses to the point where the Claimant had lost confidence in him.
The High Court allowed both experts to be substituted. The Defendant agreed that the scientist’s poor health and need for medical treatment precluded her from having further involvement in the case but when approving the substitution, the judge ordered that her notes from the on-site inspection which had taken place soon after the fire had to be disclosed because the information that they contained would assist the Court.
The judge also decided that the second expert could be substituted because the Claimants were entitled to rely on an expert whose findings they trusted but he would need to disclose copies of any draft reports other documents recording opinions about the case so that the Court and Defendant could understand why he had formed views which conflicted with those of the Claimant’s other witnesses.
The Court will not allow so-called “expert shopping” in which parties approach a number of experts with a view to obtaining an opinion which best advances their case. Substitution may be ordered even if the expert’s engagement becomes untenable but the expert may be required to disclose their draft reports so that the Court can understand why he or she has reached certain conclusions about the case.
Alex Haddad specialises in property and commercial disputes which often involve experts. Please contact Alex if you wish to discuss any issues arising from this blog (Tel No. 0203 892 6805; Email: ahaddad@nockolds.co.uk).