What is Expert Shopping?
In England and Wales where Civil Procedure Rules apply, experts are mindful of working under Part 35 of CPR. The rules state that, “no party may rely on expert evidence without prior permission of the court”. However, there is no rule on who that expert might be.
As such, parties are free to choose their expert. This is, of course quite right. There are places in the world, often those where a civil code system of law is in place, where the expert is appointed by the court. In common law countries such as England, Wales, and many in the commonwealth, parties can pick and choose their expert.
The concept of independence, when you have been appointed and paid for by one of the parties to a dispute, can be a difficult one. It’s particularly challenging for those who come from a civil code background. How can an expert be independent if they are at the same time being paid by one side or another?
This conceptual difficulty is compounded further when the subject of ‘expert shopping’ arises. Expert shopping arises where the instructing party, unhappy with the answer given by their expert, seek out an alternative expert who might give a different report.
Ordinarily, the courts do not support this approach. They usually seek to stamp it out. There is a British case where Lord Justice Dyson states that, “expert shopping is undesirable and wherever possible the court will use its powers to prevent it”. Here he was referring to the principle established in the case of Beck v Ministry of Defence [2003] EWCA 1043. In that case, the first expert’s report had to be disclosed to ensure transparency and avoid suspicions of ‘expert shopping’.
What’s Likely to Happen?
If an expert witness is dis-instructed and a new expert witness instructed, the party making the change will normally have to disclose the fact that the first witness produced a report. Previous cross-examination may also need consideration if a hearing is in progress.
It may be the case that an existing expert is neither removed nor withdrawn. It may be that the expert is simply supplemented by a new expert as the original expert was unable to deal with the matter at the level required. In such a case, the protocol of an English court would require a written request for directions from the court.
However, in normal arbitral proceedings, there is no direct recourse from the arbitrator to the expert and no power to approach to ask why he has withdrawn.
Arbitrations and Arbitrator Involvement
Rarely it may be the case that an arbitrator or tribunal chair has encouraged the appointment of a replacement expert. If an arbitrator has encouraged a new expert, this may constitute a breach of natural justice. But, it may also simply be considered as assisting the process.
However, if proceedings advance before a new appointment, this may raise a challenge in the arbitration. Again, the added complexity is only likely to add to uncertainty in the outcome of the hearing. It is likely to bring additional costs to the instructing party and possibly all parties.
The use of additional, or replacement experts in the process of any hearing will almost always bring added complication to the process and is usually discouraged.
What’s New in Expert Shopping?
More recently, two cases in the English courts dealt with similar questions. Both reinforced the position outlined above. We are grateful to Katherine Butler at Fenwick Elliott and to Maura McIntosh and Sejal Agarwal at HSF for useful information on the following:
One case involved the University of Manchester and the construction of student accommodation. The other case looked at expert evidence following a fire at retirement accommodation built in Cheshire. Both cases saw requests to substitute one expert for another. In both, it was alleged that the reason for the change was that one party didn’t like the evidence from their original experts.
In the University case, the court was asked to consider if the University was expert shopping by introducing a new expert. However, the court noted that the University had been open and transparent in providing previous experts’ reports and communications. It also noted that there was no sign that the University had changed its position from the previous experts’ reports. The court concluded there was no expert shopping and allowed the expert to testify.
In the second case, the judge ordered disclosure of the original expert report to the court. However, it was not felt that the potential for expert shopping was so great that solicitors’ attendance notes and other documentation should be produced. In essence, the claimant was just unhappy with the expert. The replacement expert was able to testify and extra documentation was not requested for disclosure.
What Does This All Mean?
Generally, the position is that courts and tribunals will examine very closely any requests to change experts. This is, of course, proper. Experts should be independent and should be scrutinised as such.
The role of the expert should be to provide independent advice, unaltered by the wishes of the client to provide a more favourable outcome. Yet, if the reasons for substituting one expert with another are genuine, it should be possible to change experts. This should be subject to the ruling out of any risk of undue influence or bias.
As always, should you need help with expert advice or the resolution of a construction dispute, get in touch today.