Hajigeorgiou v Vasiliou - Disclosure of Unwanted Expert Reports
Hajigeorgiou v Vasiliou - Disclosure of Unwanted Expert Reports
Facts
The Claimant sought damages for breach of the Defendant’s covenant of quiet enjoyment in a lease of premises utilised as a fast food restaurant. At a case management conference the parties each sought permission to rely upon expert evidence with regards to the value and profitability of the restaurant. In support of his application to adduce expert evidence the Defendant relied upon a witness statement in which the virtues of an expert, Mr Watson, together with the reasonableness of his fee were extolled. The Court ordered that “Both parties do have permission, if so advised, to instruct one expert each in the specialism of restaurant valuation and profitability.” The form of the order was taken directly form a draft agreed by Counsel; a specific reference to Mr Watson was not included
Mr Watson duly inspected the Claimant’s restaurant and prepared a draft interim report. This report was not to the liking of the Defendant and therefore he attempted to rely upon a second expert.
County Court
It was held that the order made at the CMC should be interpreted as only granting permission for the Defendant to rely upon a report provided by Mr Watson, due to the fact that he was the expert mentioned within the witness statement provided on the Defendant’s behalf. Consequently, although the Defendant was granted permission for a change of expert, this was conditional upon Mr Watson’s report being disclosed to the other side as per Beck v Ministry of Defence [2003] EWCA 1043.
Court of Appeal
The Defendant successfully appealed. The Court rejected the Claimant’s first assertion that the order should be interpreted as granting permission solely for the use of Mr Watson because the District Judge had not specified this within the order. In addition, it would be unusual in these circumstances for the Judge to have imposed an order with regards to the choice of experts which was more restrictive to the Defendant than to the Claimant (the Claimant not having specified his choice of expert at the CMC).
The Claimant’s second argument arose from his assertion that once Mr Watson was instructed by the Defendant the order had already been implemented and thereafter permission would be required to change experts. The Court examined the wording of CPR 35.4 and it was held that a court did not have power to give permission for the “instruction” of an expert, but rather the power to give permission “to call or put in evidence an expert’s report.” Consequently, the mere instruction of an expert and the drafting of an interim report did not amount to the order being implemented.
Finally, the Court of Appeal decided the need for the second expert to inspect the Claimant’s restaurant did not affect their decision. However, their Lordships considered the facts of this case to be a far cry from one whereby a second expert wished to conduct a medical examination on a Claimant.
Having determined that permission was not required (which effectively disposed of the matter) the Court turned their attention to the case of Beck. It was held in Beck that when permission was required it should only be on the condition the report of the substituted expert be disclosed. Their Lordships felt that this requirement acted as an important tool in the Court’s control of the conduct of litigation, particularly the need to keep expert shopping in check. Their Lordships were of the view that disclosure should not be confined to the expert’s “final report” but also earlier draft reports by that expert.
Comment
As long as the order granting permission to rely upon expert evidence is silent as to the name of their expert, parties may expert shop to their heart’s content; despite their Lordships comments this rather waters down the practical application of Beck. However, in personal injury claims where re-examination of the Claimant by a second expert is required this case is unlikely to have a significant impact. In Beck the order was also silent as to the identity of Defendant’s expert. However, the Claimant had refused to make himself available for examination by the proposed new expert and therefore the Defendant would have been forced to apply to the Court to seek a stay of the proceedings in the event of the Claimant continuing to refuse to submit to an examination. Consequently, the Court would still have to consider the reasonableness of such an order and, if it wished to prevent “[any room being] left for the Plaintiff to wonder whether the application is really due to the reports of a defendants’ medical expert being favourable to the plaintiff,” it could order disclosure of the former expert’s reports. So whilst expert shopping may be less restrictive in other fields, the need for a medical examination in the majority of personal injury actions will prevent it. Which only leads one to wonder; if expert shopping is so undesirable perhaps the CPR should be drafted to restrict the instruction and not just the reliance on, to only one expert?