Paying the Price for Expert Shopping

Expert shopping is a thorny issue for defendants in personal injury claims. It usually arises when a claimant is dissatisfied with his expert’s report and commissions a second, more favourable report which he then relies upon. All too often this happens prior to the issue of proceedings, and the defendant may be unaware that an unfavourable report was ever obtained.  

 

Where it is apparent that the claimant has shopped around for a favourable report, defendants are increasingly challenging claimants’ attempts to rely upon the new evidence without disclosing the earlier evidence. The court orders made demonstrate the judges’ disapproval of ‘expert shopping’.

 

There are two key Court of Appeal authorities of Beck v Ministry of Defence [2003] and Hajigeorgiou v Vasiliou [2005] on this subject. These authorities establish that, where the court has previously given permission for a party to rely on a particular expert, an order granting permission to rely upon an alternative expert can be conditional upon the earlier report being disclosed. These cases therefore form the basis of any application. The courts have however taken these principles a step further in the cases of Andrew Carruthers v MP Fireworks Limited and Other [2007] and Ramage v BHS Limited [2006].

 

The case of Carruthers arose out of an accident involving a firework which exploded causing the claimant to sustain injuries. As part of the pre-action investigation an engineer was engaged to prepare a report, which involved undertaking tests on the firework. The claimant opted however to abandon the evidence of the first expert and he appointed a second expert without disclosing the original report. The defendants argued that permission to rely on the claimant’s second expert should be conditional upon disclosure of the earlier report.

 

The High Court Deputy Judge sitting at Bristol County Court hearing the appeal in this matter made an order in the defendants’ favour. He concluded that the court could always order disclosure of an earlier report if fairness and justice required it, adding that there should be no distinction between an unidentified expert’s report obtained pre-action and a report obtained with the court’s permission. 

 

In the case of Ramage the defendants applied for the claimant’s expert to be treated as a joint expert or in the alternative, for the claimant’s earlier report to be disclosed as a prerequisite for permission to rely upon the second expert’s report. The second limb of the defendants’ application was successful and the claimant’s subsequent appeal was dismissed.

 

The starting point for launching a challenge to a claimant who has engaged in expert shopping is CPR Part 35.4(i), this states that, “No party may call an expert or put in evidence an expert’s report without the court’s permission”. In practice the claimant usually seeks permission to rely upon his expert evidence in his allocation questionnaire. It is at this stage that submissions should be made to the court, or a formal application should be lodged, detailing the relevant case authorities. The court will usually list the case for a hearing at this point.

 

The claimants’ objections are often based on the erroneous submission that the court would be overriding the claimant’s legal privilege, by making an order for permission to rely upon an expert which is conditional upon the disclosure of a different report.  All experts’ reports are of course privileged, this is not in issue. The case authorities do not impinge upon this fundamental principle, so this argument should be dismissed.

 

In our experience, once an application has succeeded, the subsequent release of a claimant’s “alternative report” often has a considerable bearing on the value of the claim. As a direct result of a report being disclosed in one particular case, following an application to Lincoln County Court, we were able to settle the claim for a fraction of the pleaded value. The claimant had claimed substantial damages for a significant back injury but the earlier report discounted the majority of her alleged symptoms.

 

In a Milton Keynes County Court case, we adopted the report which was prepared by the claimant’s first expert, disclosed as a condition of the claimant having permission to rely on his new expert. Again this has had a significant bearing on the value of the claim.

 

The issue is not restricted to medical expert evidence or even to formal reports. In a recent case the court gave permission for each party to rely upon evidence from a named engineer but at exchange the claimant disclosed a report dated 3 years earlier from a different engineer! We were advised that the engineer named in the original order had not provided a formal report, however the claimant’s solicitors admitted that they decided to abandon his evidence following a telephone discussion. We therefore, obtained an order giving the claimant permission to rely upon the earlier report, on the condition that he disclosed the attendance note of the telephone call. In that case the claimant opted not to disclose the note and he therefore abandoned his engineering evidence entirely.

 

In a recent case where our application was not granted, we did however persuade the Judge that the defendants should have permission to instruct their own medical expert. This was ordered despite the fact that it was a fast track case in which we would usually be restricted to putting questions to the claimant’s expert.

 

Obtaining disclosure of the reports, which form the subject of these applications, has translated into significant savings for our insurer clients. Adopting this approach also sends out an early warning message to solicitors and claimants expecting to have a second bite of the cherry!

 

Carol Dalton is an Associate Solicitor in the Insurance Division at Langleys Solicitors