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A “sea change” in procedure

Vijay Ganapathy considers recent cases on the risks of expert shopping and the problem of identifying the correct defendant where the tort occurred many years ago

14 August 2017

The cases of Vilca and others v Xstrata Ltd and another [2017] EWHC 1582 (QB) and Murray v Martin Devenish [2017] EWCA Civ 1016 illustrate the dangers of expert shopping. In Vilca, the defendant (X) replaced their first expert with another more experienced specialist. This second expert later became ill and so X applied for an extension of time to instruct a new expert. The claimant (V) argued the extension should only be granted if X disclosed its earlier expert reports.

The court considered there would be no equality of arms if V was entitled to instruct an expert in whom they had confidence but X could not. As regards disclosing the earlier reports, the court referred to various authorities, including Edwards–Tubb v JD Wetherspoon Plc [2011] EWCA Civ 136, which confirmed the purpose behind disclosure was to discourage expert shopping and to ensure all relevant evidence was made available to the court. Al...

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