EVIDENCE OF PREVIOUS EXPERT DOES NOT HAVE TO BE DISCLOSED: THE IMPORTANCE OF THE REASON FOR THE CHANGE OF EXPERT

July 3, 2017 · by · in Case Management, Civil evidence, Civil Procedure, Expert evidence

In Condor Vilca & ors -v- Xstrata Limited [2017] EWHC 582 (QB) Mr Justice Stuart-Smith rejected an application that a party disclose its previous expert evidence when it needed to change its choice of expert. The reason for the change is highly significant to the question of the court exercising its discretion.

“My prime concern is to achieve justice between the parties in this case; and I am far from convinced that imposing an order for disclosure of prior experts’ reports in the circumstances of this case will have any deterrent effect in others.”

KEY POINT

In a case where a party was changing its expert solely because of  an expert’s illness it was not appropriate to order that the previous expert’s evidence be disclosed as a condition of granting an extension of time and permission to rely on an alternative expert.

THE CASE

The claimants are Peruvian claiming damages for personal injuries alleged to have been suffered in a protest at a mine in Peru in 2012.  Resolution of the case required both parties to call evidence of Peruvian law. The defendants’ expert was ill. The time for exchange of expert evidence passed and the defendants applied for an extension of time to call a new expert.

The judge observed

“On the information provided to the Court and to the Claimants, the substitution of another expert in place of Professor Revoredo has nothing to do with expert shopping”

THE CLAIMANTS’ STANCE

Initially the claimants opposed the application. The main thrust of the argument was that if the defendants wanted to rely on the evidence of a new expert they must first disclose the evidence of the previous un-used expert.

THE JUDGE’S DECISION

The judge reviewed the case law and principles in relation to disclosure of expert evidence in these circumstances. He came to the view that disclosure was not necessary or desirable.
    1. Without in any way derogating from the statements of the higher courts to which I have referred, it seems to me that they speak with one voice on the central issue of principle that affects the present application. The first question for the court of first instance when it is faced with an application such as the present is whether the circumstances give rise to any power to impose a condition. In answering this first question, Beck and Vasiliou stand as useful examples of cases falling on either side of the line. In Beck the Defendant needed the Court’s permission for a second examination. That gave the Court the power to exercise its discretionary case-management powers, which are always to be exercised in accordance with the overriding objective. On the other side of the line, in Vasiliou the previous order of the Court had not specified a particular expert and the Defendant could have complied with all existing orders on time even with its new expert. When the Defendant raised the issue with the Claimant, there was nothing to give rise to further powers to control the conduct of the parties. No question of imposing a condition therefore arose.
    2. The second question, which arises if the court has determined that it has case-management powers, is how they should be exercised on the facts of the particular case. I have already said that they should always be exercised in accordance with the overriding objective. The cases to which I have referred above do not establish some different principle. What they establish is that the court will always have regard to the possibility of undesirable expert shopping and the instinctive desire for the court to have full information (with the associated desire for the other party to be assured that the court’s process is not being abused). The Court of Appeal has consistently said (albeit in slightly differing terms) that the object of imposing a condition that reports of previous experts should be disclosed is to prevent expert shopping and to ensure that full information is available.
    3. I do not exclude the possibility that there might be cases where the two limbs of the rationale identified by the Court of Appeal might be absent and yet there might be some other reason, specific to the facts of that case, which require or justify the imposition of the condition of disclosure. But I do not accept that it is established either on principle or by authority that there is a rule of practice or procedure requiring that the condition be imposed if the two limbs of the rationale are absent and there is no other good reason to impose it. Furthermore, while the usual course where the two limbs of the rationale are present will be that the condition will be imposed, it is not inevitable. In my judgment the court should in all cases apply its mind to what course will best meet any concerns that may exist and best advance the overriding objective. This requires the court to consider in any given case what weight, if any, is to be given to those factors that might support the imposition of conditions as well as to those which tend in the opposite direction.
Application of the Principles to the Present Case
  1. I accept that the Defendants need an extension of time, which brings into play the Court’s powers to control its process. Those powers include the power to order that the substance of the opinion of prior experts be disclosed as a condition of the grant of the extension of time.
  2. This is not a case where there is any sound basis for concern about undesirable expert shopping. Professor Revoredo has the misfortune to be unwell and has withdrawn. The Defendants have assured the Court that she would have been their expert at trial but for her ill-health. There is no reason to doubt that assurance and I accept it. The reason for the switch from Mr Amado to Professor Revoredo has also been explained coherently; and it is material to take into account that no question of the switch from Mr Amado to Professor Revoredo could have arisen for consideration by the court but for the misfortune of Professor Revoredo’s ill-health. The Defendant’s were entitled to change experts at that time and would have had no reason to suppose that they would subsequently be unable to comply with time limits in the way that has occurred. Had Professor Revoredo become unwell even a short time earlier, no question of requiring the Court’s intervention would have arisen as the Defendants could and would have obtained an alternative expert’s report in time to serve it in accordance with the orders of the court that were then applicable.
  3. In my judgment, there is also no sound basis for any suspicion of abuse of process by the Defendants. In addition, the circumstances in which the new expert has been instructed do not suggest any substantial reason for thinking that the Court (and the Claimants) will not have full information. Ms Kaufmann made the point that the Claimants do not know what is in the opinions of the prior experts. That is true, but it is worth remembering two things when considering the substitution of one expert in Peruvian law for another. First, as with experts in any other discipline, it is to be expected that there will be some differences in opinion (or expression of opinion) between different experts. It does not follow that the differences will necessarily or even probably assist the court or the opposing party in identifying the correct resolution of any issues that it has to decide. Second, there is equality of arms between the parties because the Claimants have their own expert, in whom they have confidence. There is no reason to suppose that the Defendants’ new expert will omit relevant material that might have been included by Professor Revoredo: in other words, there is no reason to think that disclosure of Professor Revoredo’s draft report will add usefully to the information that is available to the court and the Claimants. If, however, there is error or omission in the new expert’s report, the Claimants are able to identify it during the process of expert’s meetings and joint statements and, if necessary, at trial.
  4. I add for completeness that the possibility of the Claimants wishing to call Professor Revoredo or, more importantly, Professor Revoredo being in a position to be called at trial seems so unlikely as to be fanciful.
  5. It follows that, in my judgment, this is not a case where there is a need to protect against undesirable expert shopping or to take steps to ensure that all useful material is available to the Claimants or the Court. I am unable to identify any other good reason for imposing the condition. Ms Kaufmann floated the possibility of an “in terrorem” order being made to deter those who might be contemplating expert shopping or the abuse of the court’s process in other cases. My prime concern is to achieve justice between the parties in this case; and I am far from convinced that imposing an order for disclosure of prior experts’ reports in the circumstances of this case will have any deterrent effect in others. The principles are now well-established: anyone competent to conduct litigation knows that, if there is a hint of undesirable expert shopping or that significant relevant material is being withheld, the imposition of the condition will be the usual order.
  6. These reasons would of themselves be sufficient for my decision. But I also take into account the fact that I am to be the trial judge; and I look ahead to how the trial may best and most expeditiously be conducted. I look forward to reading the evidence of the experts on Peruvian law and to hearing their evidence on points of disagreement at trial. Speaking for myself, I would almost certainly find the deployment of reports (draft or otherwise) or other material that is said to contain the substance of a prior expert’s opinion to be a distraction and a hindrance; and I am certainly not going to be influenced by a numbers game where it is urged upon me that not only does Expert A hold a view but Experts B, C or anyone else would have held the same view if they had served a report and been called. My personal experience of dealing with expert evidence on foreign law has been that the debate between the experts who have been called has identified and elucidated all necessary points of agreement and difference and, in the case of disagreement, the reasons why agreement has not been reached. There is no reason to think that the present case will be different. Finally, the fact that Professor Revoredo’s report is still in draft form means that, if an order for disclosure were to be made, there would be the prospect of distracting and expensive argument about whether a certain passage did or did not represent her finally considered view; and whether or not other communications should or should not be disclosed on the basis that they might contribute to an understanding of her views. These practical considerations about how the trial process may best be conducted support the view that I would have formed in any event.
  7. For these reasons I consider that the authorities to which Ms Kaufmann has referred do not require me to exercise my case-management powers and discretion so as to impose a condition of disclosure on the facts of this case. There is no good reason to impose the condition; and the overall balance, taking into account the overriding objective and with a view to conducting a fair, effective and expeditious trial, is firmly in favour of not imposing the condition in this case.”

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