Switching horses

If a party to litigation loses confidence in the expert he first instructs, will he be permitted to call a second expert to give evidence instead and if so will he have to disclose the first report? This can depend on timing and the wording of any pre-existing direction as to expert evidence. Variations in outcome can arise due to the tension between the protection from disclosure afforded to experts' reports by litigation privilege and recent Court of Appeal decisions aimed at discouraging 'expert shopping', which have indicated that permission for a second expert should normally be granted only on condition that the first expert's report is disclosed.

Experts' reports prepared for the purposes of litigation are, until they are disclosed, protected by privilege. So in Carlson v Townsend [2001] EWCA Civ 511, the claimant, who had decided not to disclose the report of the expert approved by the defendant pursuant to the personal injury protocol, and to rely on a report prepared by a second expert, successfully appealed an order that he disclose the first report. It was not a joint report and the protocol did not override or enable the court to override the privilege in the report. But this decision was on the defendant's application for the first report to be disclosed, in advance of any application by the claimant for permission to call expert evidence, or the making of any direction by the court as to expert evidence.

Discouraging 'expert shopping'

In Beck v The Ministry of Defence [2003] EWCA Civ 1043, there was a direction for expert psychiatric evidence, and the defendant, having already instructed one psychiatrist who had examined the claimant and prepared a report, then sought permission to rely on a different psychiatrist. The Court of Appeal expressed the view that in order to discourage 'expert shopping' disclosure of the first report to the other party should normally be a condition of being allowed to rely on a fresh expert. But no mention was made throughout the judgment of the issue of litigation privilege in the first report.

Beck was explained in Vasiliou v Hajigeorgiou [2005] EWCA Civ 236 not as 'abrogating or emasculating' legal professional privilege in the first report but merely as requiring that the party seeking the court's permission to rely on a substitute expert should waive privilege in the first report as a condition of being granted permission. Civil Procedure Rule (CPR) 35.4 provides that no party may call an expert or put in evidence an expert's report without the court's permission. The court should approach the issue on the basis that a party requires permission in order to rely on a second expert, and the court's power to give permission should usually only be exercised on condition that the first report is disclosed. Dyson LJ said: 'If a party needs the permission of the court to rely on expert witness B in place of expert witness A, the court has the power to give permission on condition that A's report is disclosed to the other party and such a condition usually will be imposed.'

The fact this device is necessary to get round the fundamental protection of privilege, which the court has no power to override, can lead to some artificial results and raises some questions demonstrated in Vasiliou itself.

The order made at the case management conference was that both parties have permission to instruct one (unnamed) expert each in restaurant valuation and profitability. Reference had been made in a witness statement to the defendant having identified such a possible expert, who indeed subsequently inspected the restaurant premises. But the defendant then decided he wanted another expert to inspect, and when the claimant refused access, sought permission to rely on the second expert and for access for the second expert to inspect.

The Court of Appeal said, obiter, that had the existing direction given permission to adduce the evidence of a named expert it would have been justified, on granting permission to rely on the second expert, to impose a condition as to disclosure of the first expert's draft report. However, because of the technicality that the existing direction granted the parties permission for one unidentified expert each in the relevant specialism they were entitled to call any expert in that field, so that the defendant did not need the court's permission to adduce evidence from his second expert, and no condition could be imposed. A number of further points arise:

• In Beck there had also been an existing direction giving each party permission to call an unnamed expert, but no point had been taken in that case that therefore the court's permission to call a second expert was not needed.
• In concluding that the terms of the order did not require the defendant to obtain permission to rely on his second expert, it was pointed out that the second expert would have been able to comply with the timetable set by the pre-existing direction. The question arises had he not been able to do so, would the need for the court's permission to extend the timetable have enabled it to impose a condition as to disclosure of the first report.
• In Beck the defendant also needed the claimant to submit to a further medical examination by the replacement expert, which the Court of Appeal acknowledged was 'a far cry' from a request for a further inspection of the claimant's restaurant. Whilst stating that it would have been 'unreasonable and disproportionate' to give permission to inspect the restaurant only on condition that the defendant disclose the first expert's report, this difference in context does not feature in the judgment as a possible distinguishing factor, nor as a factor to be taken into account in the exercise of the discretion to impose a 'Beck condition' for disclosure of a first report on granting permission for a second expert. Beck was interpreted as saying that such a condition should normally be imp-osed whenever the court's permission is needed to rely on a replacement expert.

First report privilege

The courts' stated intention has been to prevent 'expert shopping', an important objective of the CPR. At the root of the problem is that the privilege in a first report prevents the court from seeing or knowing the reason for the change of experts. In Carlson and Vasiliou no explanation was given. But that is precisely what litigation privilege is there to protect '“ the right to obtain confidential advice on the viability of a claim.

Not every party wishing to change experts will be 'expert shopping' in a pejorative sense. A blanket exercise of the discretion to impose a 'Beck condition' risks imposing pressure to disclose material protected by privilege on parties who may well have good reason to be unhappy with their first expert. That there can be justifiable reason for a party to seek further expert evidence has been recognised by the courts where a party has become unhappy with a single joint expert (Daniels v Walker [2000] EWCA Civ 508).

Moreover the Court of Appeal in Vasiliou went on to express the view that the 'Beck condition' would extend to disclosure of earlier drafts of a first report, putting the party seeking to rely on a second report in a worse position than any other party seeking to rely on an expert's report, which might be considered beyond what is fair and reasonable. Alan Jackson v Marley Davenport Limited [2004] EWCA Civ 1225 confirmed that initial drafts of disclosed experts' reports are privileged.

In two county court cases, district judges' decisions granting permission to rely on an expert conditional upon disclosure of a report previously obtained from another expert have been upheld on appeal, though no earlier order had been made making provision for expert evidence, named or otherwise. An argument that Vasiliou applied only where permission was required to replace an expert identified by the court failed. Vasiliou was instead interpreted 'as strongly indicating that where permission to rely on an expert is sought, a condition ought to be imposed that any earlier report by another expert in the same discipline ought to be disclosed.'

Presumably what the judge had in mind was an expert instructed earlier to prepare a report for possible use in subsequent proceedings but which the party decided to discard and not rely on in the proceedings, not an expert adviser instructed to advise on the viability of a claim with no intention to use the advice in subsequent proceedings. But that is not stated and the distinction could be a fine one.

However these cases could both be distinguished on the grounds that the circumstances surrounding the instruction of the first report, required its disclosure in the interests of justice and fairness.

In Ramage v BHS Ltd (Slough CC, Judge Charles Harris QC, 10.07.06), there was criticism of the conduct of the claimant's solicitors. Pre-action they sought the defendant's approval of joint instructions to an agreed expert and in the absence of a reply within a very short time instructed the expert on their own without informing the defendant. The expert became their sole expert and the defendant could not therefore require disclosure of his report. However, a condition that it be disclosed was imposed when the claimant sought permission to rely on a second expert, even though there was no prior order making provision for expert evidence.

In Andrew Carruthers v MP Fireworks Ltd (Bristol CC, Recorder Moxon-Browne QC, 26.01.07) the claimant unsuccessfully appealed the district judge's order giving permission to rely on a report from pyrotechnics expert B subject to disclosure of an earlier report which the claimant had obtained from pyrotechnics expert A, although again there was no earlier direction naming expert A. Relying on Vasiliou, the judge gave as an additional reason the fact that expert A had performed tests on the firework which had caused the claimant's injury, the results of which open justice and fairness demanded should be put before the other experts and the court especially where there was a perception that those tests may have altered the physical condition of the exhibit.

Whether there may be the opportunity for the Court of Appeal to clarify the basis on which the Beck discretion is to be exercised so as to guard against expert shopping while respecting the fundamental right to litigation privilege remains to be seen. In the meantime there may be more decisions extending the scope of 'Beck conditions' on a change of experts.