In the matter of Rogerson (t/a Cottermore Hotel, Golf and Country Club) v Eco Top Heat & Power Ltd, the Technology and Construction Court allowed a defendant to change its expert witness during proceedings, subject to the condition that the defendant had to disclose materials relating to an expert it had instructed pre-action.
On 11 June 2018 there was a fire at the claimant’s premises. The defendant, was a firm of building contractors who at the time were undertaking window installation works at the hotel premises.
The claimant claimed that the fire was caused either by a cigarette discarded by one of the defendant’s employees or by a spark emitted from an angle grinder used by one of the defendant’s employees. The defendant denied liability.
Two days after the fire, the defendant’s solicitors contacted the claimant to inform the claimant of their instruction via the liability insurers and of their understanding that it had been suggested that the cause of the fire may have been the “careless discarding of a cigarette end by an employee” of the defendant. They stated that they would “robustly defend any assertion of liability on its part” and would seek their costs of doing so from the claimant. The solicitors also stated that they were arranging the involvement of an expert forensic fire investigator and subsequently confirmed they had instructed Dr Nagalingam.
Dr Nagalingam visited the site on two occasions in July 2018, which took place jointly with two experts instructed by the claimant. The experts jointly interviewed a number of witnesses, following which, Dr Nagalingam reportedly agreed with the claimant’s experts that the fire was mostly likely caused by a cigarette. No loss adjuster was appointed by the defendant and the insurers did not attend the site. In October 2018, Dr Nagalingam had a meeting with the defendant’s solicitors in which he set out his views on causation. An attendance note of the meeting was prepared and was subject to litigation privilege.
The claim was issued in August 2020. In March 2021, whilst the parties were attempting to agree directions, the defendant’s solicitors asked for a direction that they had permission to call Ms Wilson as their expert on the cause of the fire, pursuant to CPR 35.4. The claimant’s solicitors argued that this was a substitution for Dr Nagalingam, and if permission were to be granted, that conditions should be imposed in relation to the disclosure of certain documents and categories of documents, including the disclosure of the October 2018 attendance note.
The claimant argued that the defendant had failed to be transparent in its explanation about Dr Nagalingam, including his original instruction, and its reasons for now instructing Ms Wilson. They argued that whilst the Pre-Action protocol for Construction and Engineering Disputes had not commenced at the time of Dr Nagalingam’s instruction, he had inspected the site and collaborated with their experts.
Mr Alexander Nissen QC, sitting as a High Court Judge, granted the claimant’s application and ordered the defendant to disclose the attendance note of their meeting with Dr Nagalingam.
In reaching its decision the court identified two questions for the court to consider:
- Was the defendant changing experts at all?
- If the defendant should be regarded as seeking to change experts, should the court exercise its discretion to impose the condition sought?
Was the defendant changing experts at all?
The defendant’s solicitors argued that Dr Nagalingam was first instructed to investigate the cause of the fire by a third party, not their client or their client’s insurer, but they later agreed to share the fees. The defendant also argued that Dr Nagalingam had “never given an expert opinion on causation, favourable or unfavourable”, although they subsequently agreed that he did express views on causation at the meeting in October 2018. The defendant did not disclose the terms upon which Dr Nagalingam was engaged or for what purpose; their failure to provide any form of instruction meant that the court approached the defendant’s submission on his instruction with a degree of scepticism.
The judge referred to the decision in Edwards Tubb v JD Wetherspoon, (which was subject to the Personal Injury Pre-Action Protocol (PI Pre-Action Protocol)) where the Court of Appeal ordered the party changing expert to disclose documents created at the stage when the parties were co-operating in the selection of experts under the PI Pre-Action Protocol. Whilst there was no comparative stage in this case (as the Pre-Action Protocol for Construction and Engineering Disputes does not usually involve experts), the judge held that the type of process followed in this case was sufficiently analogous for the following reasons:
- By the time the experts met, it was already assumed in correspondence that litigation would occur. The defendant’s solicitor had already denied liability and had asserted a claim for costs.
- This was not a one-off private inspection undertaken by the defendant’s expert on his own, there were two inspections undertaken jointly with the claimant’s experts.
- The defendant’s and claimant’s experts met with witnesses and engaged with each other in the discussion of possible causes of the fire. It was noted that the level of engagement and liaison was considerable.
- Dr Nagalingam continued to exchange emails with the claimant’s experts after the inspections and meeting with witnesses had taken place.
The defendant also argued that a clear distinction should be made between an expert who was instructed privately in the immediate aftermath of an event and one instructed for the purpose of prospective litigation. However, the court noted when the defendant’s solicitors were asked who their expert was, they named Dr Nagalingam. The judge added that if, contrary to his view, Dr Nagalingam should be regarded as an expert engaged for private pre-litigation advice, the features of the case, in particular the early pre-action engagement between the parties, were sufficiently unusual to treat him otherwise.
If the defendant should be regarded as seeking to change experts, should the court exercise its discretion to impose the condition sought?
Counsel for both parties agreed with the judge’s suggestion that there should be a sliding scale between a flagrant case of expert shopping, because a party does not like the damaging views expressed by the current expert, and at the other end an expert being replaced for objectively justifiable reasons such as illness or retirement. The closer the circumstances are to the former, the more likely it is that a court will impose conditions with a high price such as a waiver of any privilege. The closer they are to the latter, the less onerous such conditions (if any) as may be imposed will be.
As it is well established that expert shopping is discouraged, the judge noted that any conclusion “will almost always have to be one reached by inference” as the conduct is not likely to be “patent or admitted”.
In this case, the judge was prepared to draw the inference that expert shopping had occurred for tactical reasons, namely that the expert had concluded a discarded cigarette was the likely cause of the fire.
The key factors in reaching this decision were:
- The defendant’s attempt to distance themselves from Dr Nagalingam by suggesting that he was instructed by a third party, when the instruction was a joint one. Also by failing to disclose their retainer with Dr Nagalingam in evidence of their assertion that the instruction was limited.
- The defendant had initially denied that Dr Nagalingam had expressed any view on causation but subsequently admitted that he had during the October 2018 meeting.
- Dr Nagalingam had expressed a view on causation to his fellow experts. If this was not true, why had the defendant not provided a witness statement from Dr Nagalingam to that effect.
- Dr Nagalingam was a suitable expert for the role .
As such the judge ordered the defendant to disclose the attendance note of their meeting with Dr Nagalingam but only to the extent that the note set out or referred to his views on causation, and that all other matters must be redacted. No order was made for the other documents requested by the claimant as the defendant said they did not exist.
Guidance for practitioners
Whilst is well established that the court can and usually will require a party to waive privilege in a previous expert’s report as a condition of granting permission for a change in expert, this judgment confirms the court’s power extends to experts instructed pre-issue.
This is even if the original expert was instructed at a very early stage and prior to the pre-action protocol process being engaged, if it can be shown that the expert had been instructed for prospective litigation or if the features of the case were sufficiently unusual that it will be appropriate to require a waiver.
If contemplating a change in experts, practitioners should carefully consider the potential price of doing so and have regard to the following:
- The reason why the expert was originally instructed. Is it on a private basis or is there prospective litigation?
- The degree of any collaboration between experts.
- The reason for the change in expert.
- The absence of any written report does not mean disclosure cannot be ordered.