Expert shopping is not for the privileged

30 December 2013

The use of experts in litigation cases to support evidence, and more specifically the act of shopping for experts has brought the issue of legal professional privilege under the Court’s spotlight again.

In the case of Edwards-Tubb v J D Wetherspoon [2011] EWCA Civ 136 the Court held that it was within the Court’s discretion to require one party to waive privilege of a previous expert’s report before allowing them to adduce evidence from a new expert. A recent authority has taken this one step further and now suggested that in cases where there is very strong evidence of “expert shopping” attendance notes of discussions between solicitors and experts may be disclosed to the court: BMG (Mansfield) Ltd and another v Galliford Try Construction Ltd and another [2013] EWHC 3183 (TCC). Whilst the concepts of legal advice privilege and litigation privilege, which enable a party to withhold disclosure of documents or communications with its legal advisers provided they are created for the express purposes of seeking or obtaining legal advice or once litigation has already begun or is in contemplation, are well-established mainstays of the legal system of England and Wales these authorities have had a significant impact on the extent to which a party may now withhold disclosure of communications with experts under the cloak of privilege.

The examination of whether solicitors’ notes made during discussions with experts were disclosable arose during BMG (Mansfield) after the appointed expert decided to step down after his 70th birthday following six years of litigation. The subsequent request for a new expert, shortly after a failed mediation, prompted an accusation from the other side of “expert shopping” and an application to the court for disclosure of any documents in which the retiring expert had expressed an opinion.

Judge Edwards-Stuart rejected this application holding that “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.” In this instance the Court found that the need to change experts at such a late stage was justified and not, as was alleged, a case of seeking a different opinion, though it was commented that a statement should have been obtained from the outgoing expert explaining his decision to step down. It should be noted that the costs of instructing the new expert were not recoverable.

The judge clarified his position, acknowledging that because of the nature of expert evidence an attendance note of a meeting may only reflect the solicitor’s interpretation of what the expert has said. If documents such as this were to be relied upon as evidence the contents would need to be clarified by the outgoing expert as accurately reflecting what was said at the time. If the expert refused to do so, or contested the accuracy of the notes then further problems would arise.

These authorities provide a valuable reminder to litigation lawyers regarding their communications with experts, and that any such communications with experts must be treated as potentially disclosable and therefore approached with care

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