Unfavourable expert reports – Prohibition on ‘Expert shopping’

Edwards-Tubb v JD Wetherspoon [2011] EWCA Civ 136

The claimant suffered an injury as a result of an accident at work, for which the defendant employer admitted liability.

Under the pre action protocol the claimant suggested three potential medical experts in the letter of claim, and subsequently one of the expert orthopaedic surgeons was instructed to prepare a report. This report was never disclosed.

Proceedings were issued and the expert report that the claimant relied on in the particulars of claim mentioned the previous undisclosed report.

The defendant employer applied to the court for an order that the first report be disclosed. They argued that disclosure ought to be made a condition of the permission which the claimant needed under CPR r35.4 to rely on the second expert report. The application was initially successful, and a conditional order was granted to this effect. The order was then overturned as the appeal judge felt that the decision overrode the right of privilege.

The defendant appealed to the court of appeal and there was a unanimous decision to restore the first instance judge’s order. Hughes LJ found that:

i) Part 35 of the CPR dealt with experts who were instructed to report ‘for the purpose of proceedings’. Although there is a distinction between an expert instructed privately, and an expert instructed under Part 35, there is no difference in principle between a change in expert instructed for the purpose of proceedings pre-issue, and a change in expert, who is instructed for the purpose of proceedings, post-issue;

ii) Once a party has commenced the pre-action protocol procedure, there is no good reason as to why an expert’s report should not be disclosed; and

iii) It was necessary for the court to exercise its discretion under CPR 35.4 in order to discourage so called ‘expert shopping’, and to maximise the information available to the court.

Parties who are dissatisfied with the contents of an expert report therefore need to be aware that the courts have this discretionary power under CPR r35.4, and will order the disclosure of earlier reports if they feel it is in the interests of justice to do so.