A recent interim application before the Technology and Construction Court (TCC) has shed light on the circumstances under which a party in court proceedings can replace experts.
The case involved a dispute regarding fire safety defects and the claimants sought to replace two experts close to the commencement of the trial. The TCC granted permission for both replacements but imposed different conditions based on the distinct reasons provided by the claimants.
The background of the case involves a fire that occurred in 2019 at Beechmere retirement village in Crewe, resulting in significant property damage. The claimants initiated legal proceedings, seeking damages of over £40 million due to alleged deficiencies in the design and construction of the property.
The court had previously granted permission to the claimants to call multiple expert witnesses, including a forensic scientist, Ms H, and a fire engineer, Mr W. However, the trial was adjourned when Ms H fell seriously ill.
Subsequently, the claimants made an application to replace both Ms H and Mr W, with each application having different circumstances. The claimants sought to replace Ms H due to her illness, which prevented her from participating further in the proceedings. On the other hand, the claimants initially expressed dissatisfaction with Mr W as an expert but later raised concerns about his views and approach.
The court has the discretion to permit a party to change the identity of an expert, considering the material circumstances and the Overriding Objective. While the court generally allows a party to rely on a new expert, it can impose conditions to deter "expert shopping" and ensure transparency.
In the case of Ms H, the court had no criticisms of the claimants' application to replace her due to her ill health. Although the defendants did not object to the replacement, they argued for the disclosure of Ms H's expert reports, site inspection reports and interview notes with witnesses. However, the court found it unjust to impose this condition and ordered only the disclosure of notes taken by Ms H during site investigations.
Regarding the replacement of Mr W, the situation was more complex. Initially, the claimants cited dissatisfaction with him as an expert. However, during the application hearing, it became apparent that their concerns related to overlapping opinions with other experts and a perceived lack of careful document review. The defendants opposed the application, claiming it was "expert shopping." Nonetheless, the court held that the claimants should be allowed to rely on an expert they have confidence in and therefore granted permission to replace Mr W. However, it imposed the condition that all his reports, including drafts and any further documents expressing his opinion, must be disclosed.
The court found no indication of “expert shopping” on the part of the claimants or their experts, which is why it did not order the disclosure of attendance notes.
This recent application before the Court provides valuable insights into the circumstances under which permission to change an expert witness may be granted and the related disclosure requirements. Legal teams can learn from this case and understand that permission to replace an expert may be granted if it is in the interests of justice and if there are valid reasons for the change. However, disclosure obligations may be imposed to ensure fairness and transparency in the proceedings.
