This case concerns the importance of initial choice of expert witness to give evidence and the reluctance of courts to allow what has become known as “expert shopping“. The practice of substituting one expert for another whose opinion a party prefers has been consistently considered undesirable by the court, and conditions will often be imposed.

In June 2018 there was a severe fire at the Cottesmore Hotel Golf and Country Club (‘CHGC’) in Crawley, Sussex. Millions of pounds damage was caused and there were substantial business interruption losses whilst the club had to be shut for a significant period. The fire broke out whilst the Defendant Eco Top Heat & Power (‘ETHP’) was installing windows at the hotel. The Claimant, CHGC, alleged that the fire was caused by the Defendant’s negligence, in particular, (1) that one of its employees had discarded a lit cigarette or (2) that a loose spark from an angle grinder had started the blaze. The Defendant denied these allegations.

Soon after the fire, both parties engaged experts to examine the site and try to determine the cause of the fire. Two days after the fire, the Defendant confirmed to the Claimant that the “instructed expert for the fire investigation is Mr Nagalingam”. Mr Anil Nagalingham (‘Dr N’) is an expert forensic fire investigator from Dr JH Burgoyne & Partners LLP. The experts conducted joint site visits and interviewed witnesses, continuing to discuss a number of queries from their investigation. At a joint site visit the Claimant alleged that their experts stated that the cause of the fire was a ‘cigarette’ to which Dr N replied “it’s hard to see it’s anything else”. Dr N did not prepare an expert report but did provide his views on causation to the Defendant’s solicitors in October 2018 which were recorded in a privileged attendance note.

CGHC sent its Pre-Action Protocol for Construction and Engineering Disputes Letter of Claim to ETHP in February 2020. In its Letter of Response ETHP made no reference to any expert having been instructed by them. Court proceedings were issued in the Technology and Construction Court in August 2020. The usual procedures were followed and the parties began preparing for the Costs and Management Conference in March 2021. The Defendants presented draft directions which included a request to the Court to allow them to call upon the expert testimony of Ms Emma Wilson of Prometheus Forensics Ltd, and not Dr N. The Claimant CHGC responded by applying to the Court seeking conditions for the substitution on the basis that this was a case of “expert shopping“. ETHP, resisted the application and argued that Ms Wilson had been instructed because of her superior experience in cigarette-initiated fires. Conditions were not warranted as this was not a case of expert shopping. ETHP also argued that there was a material difference in advice given before the Letter of Claim was sent in February 2020 and that it would be unfair to reach so far back in time. Dr N had produced no reports, in draft or otherwise giving his opinion. The only written evidence of opinion was the solicitor’s attendance note of a case conference in October 2020 which was privileged. To waive privilege could not be justified, ETHP argued, as the note had been written by someone else and might not truly represent Dr N’s actual views.

The case came before Mr Alexander Nissen QC (sitting as a Judge in the High Court) and the Court deliberated at length on the various issues raised. Under the Civil Procedure Rule 35.4 (‘CPR35’) the court has jurisdiction (n.b. not a duty) to make an order imposing a condition on that party’s change of expert. Considering all the circumstances of this particular case, the Judge was satisfied that Dr N had been appointed with a view to him becoming the Defendant’s expert within CPR35, and that if they now wished to use a new expert, conditions should apply. In making this decision to allow the appeal, the Judge took the following factors into account: the Defendant failed to provide any evidence of terms upon which Dr N was engaged, or for what purpose, which was felt to be less than honest and persuaded the Judge to treat their insistence that Dr N’s role was very limited with some suspicion. Even though a letter of claim had not been sent, litigation was in the air and litigious correspondence had been sent, so both parties knew what was in prospect. There had also been a high level of liaison between both original experts and also a joint site visit. If ETHP wished to change their expert, their solicitor’s attendance note from the October case conference would no longer be privileged and would have to be disclosed to the other side.

Each case will obviously turn on its own facts but it is clear that the Courts have a negative view of expert shopping, and substituting an expert at a later stage in a dispute could come at the price of having to disclose earlier less favourable evidence, even if privileged. Parties should give careful thought as to whether this is a price worth paying for an alternative more supportive expert opinion.

Link: Rogerson (t/a Cottesmore Hotel, Golf and Country Club) v Eco Top Heat & Power Ltd [2021] EWHC 1807 (TCC) (02 July 2021)

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