BMG (Mansfield) Ltd & Anor v Galliford Try Construction Ltd & Anor

When a party seeks permission to replace an expert after the pre-action process has begun, the court may require disclosure of earlier reports or documents containing the substance of the expert’s opinion. Disclosure of privileged attendance notes recording solicitors’ understanding of that opinion requires a very strong case, particularly where there is only a faint appearance of expert shopping. An expert’s specialist knowledge does not generally make otherwise relevant evidence inadmissible, although it may affect weight. Late amendments may be allowed where they arise from the same or substantially the same facts, even if they advance a different legal basis. Amendments introducing substantial, disproportionate and insufficiently particularised new enquiries may be refused.

The claim arose from a serious fire at a shopping centre owned by the claimants. They alleged that defects in the design and construction of Phase II works caused inadequate fire protection and aggravated the damage. The claimants applied for permission to instruct a new expert architect, Mr Edwards, after their original expert, Mr Streeter, indicated that he wished to withdraw. They also sought to amend their Particulars of Claim after the expiry of the contractual and tort limitation periods.

The defendants opposed the applications, alleging expert shopping, challenging Mr Edwards’s expertise, and arguing that the amendments introduced new and stale claims.

1. Expert evidence. The court had power under CPR 35.4(1) to impose conditions on permission to call Mr Edwards. Following Edwards-Tubb v J D Wetherspoon [2011] EWCA Civ 136, disclosure of earlier expert reports would ordinarily be appropriate where the change occurred after the parties had engaged in the pre-action process. The principle was not confined to reports prepared for litigation, consistently with Vasiliou v Hajigeorgiou [2005] 1 WLR 2195.
2. The power could extend to reports or documents containing the substance of the former expert’s opinion. It should not ordinarily extend to solicitors’ attendance notes recording or purporting to record that opinion. Such notes were privileged, might not reproduce the expert’s words accurately, and could contain unrelated litigation material. A very strong case was required before their disclosure could be ordered.
3. The evidence did not establish expert shopping, and any appearance of it was faint. The claimants were therefore ordered to disclose any other report or document provided by Mr Streeter expressing, or recording the substance of, opinions on the issues, but not all relevant attendance notes.
4. Expertise and admissibility. Mr Edwards’s evidence was admissible against the architects because he was an architect. His specialist knowledge of fire precautions went to weight, not admissibility. The reasoning in Sansom v Metcalfe Hambleton [1998] PNLR 542 did not prevent an architect giving relevant evidence on aspects of a design-and-build contractor’s assumed design obligations.
5. Amendments. Amendments relying on insurance-industry publications were refused as too late, disproportionate and unjust. The proposed reliance on three reported supermarket fires was allowed in general terms, but reliance on an insufficiently particularised poultry-factory fire was refused, applying Swain-Mason v Mills & Reeve [2011] 1 WLR 2735 at [73].
6. The allegation that compliance with Approved Document B represented contractual best up-to-date practice was allowed. Whether it constituted a new claim did not need to be decided because, in any event, it arose from the same or substantially the same facts as the existing claim. The green and blue amendments were allowed subject to stated terms, and the red amendments were allowed except as specified.