Hajigeorgiou v Vasiliou

Permission for expert evidence under rule 35.4 of the Civil Procedure Rules 1998 may be granted by reference to a specified field rather than a named individual. Where an unambiguous order identifies only the field, a party may rely on a replacement expert in that field without further permission. Permission regulates the calling of an expert and the adducing of that expert’s report; it does not regulate the instruction of experts.

An agreed order cannot be recast under the slip rule merely because evidence supporting the application named a particular expert. The court also explained that, where permission is required to substitute an expert, disclosure of the first expert’s substantive report will usually be a condition. This deters expert shopping without abrogating litigation privilege, since the party may choose not to seek the substitution.

The claimant had obtained judgment on liability for breach of a covenant for quiet enjoyment, with damages to be assessed. At a case management conference, the Central London County Court permitted each party to instruct one expert in restaurant valuation and profitability, without naming an individual expert.

The defendant initially instructed Mr Watson, who inspected the premises and prepared a draft interim report. The defendant then sought to rely instead on Mr Negus. Judge Cowell held that the original order was effectively limited to Mr Watson, granted permission for Mr Negus, and made disclosure of Mr Watson’s report a condition.

The appeal concerned whether the original order required fresh permission for the replacement expert and, if it did, whether disclosure of the first expert’s report could properly be required notwithstanding privilege.

1. Appeal allowed. The order of 21 July 2004 plainly authorised each party to rely on one expert in the stated field of restaurant valuation and profitability. It did not identify Mr Watson by name. Rule 35.4(3) of the Civil Procedure Rules 1998 permits permission to be related either to a named expert or to an identified field. The defendant therefore did not require further permission merely because he wished to rely on Mr Negus rather than Mr Watson.
2. The order had been agreed by counsel and was unambiguous. The fact that the evidence in support of the application had described Mr Watson and his qualifications did not establish an accidental slip or omission capable of correction under rule 40.12(1). Permission was not exhausted by instructing Mr Watson. Rule 35.4 concerns calling an expert and adducing an expert report, not the instruction of an expert.
3. On the alternative issue, which did not arise for the disposition, the court followed Beck v Ministry of Defence [2003] EWCA 1043. If permission is needed to substitute a named expert, the court has power, and will usually exercise it, to require disclosure of the first expert’s substantive report as the price of permitting the substitute. That condition prevents expert shopping. It does not remove privilege compulsorily; the party remains free not to seek the court’s permission.
4. The condition is not confined to a report formally signed for disclosure. It extends at least to a report containing the substance of the first expert’s opinion. Accordingly, if permission for Mr Negus had been required, disclosure of Mr Watson’s draft interim report would have been justified. Paragraph 4 of the order dated 2 December 2004 was deleted, and the claimant was ordered to pay the appeal and hearing costs, subject to set-off.

• Court of Appeal (Civil Division) — allowed the defendant’s appeal in [2005] EWCA Civ 236 and deleted the disclosure condition imposed below.
• Central London County Court — Judge Cowell held that the defendant needed permission to replace Mr Watson with Mr Negus and granted that permission only on condition that Mr Watson’s report be disclosed. The order under appeal was dated 2 December 2004, following the hearing on 18 October 2004.
• Central London County Court — at an earlier case management conference, Judge Levy QC had permitted each party to rely on one expert in restaurant valuation and profitability.