Allen Tod Architecture Ltd v Capita Property And Infrastructure Ltd

The court has a wide discretion to impose conditions when permitting a party to rely on replacement expert evidence. Disclosure of the first expert’s report will usually be required, but the power extends to earlier drafts, preliminary reports and other documents expressing the substance of the expert’s opinion. The power is not dependent on proof of expert shopping and must be exercised reasonably, having regard to all the circumstances. Privilege does not prevent such a condition: the party may retain privilege by declining permission to rely on the replacement expert. Strong evidence is required before attendance notes or similar solicitor-generated records are ordered, particularly where they may contain material beyond the expert’s opinion.

The claimant, an architect in liquidation, brought professional negligence proceedings against the defendant structural engineer arising from the renovation of Barnsley Civic Hall. The claimant had instructed an initial expert, expert A, who produced notes, a preliminary report and a later draft report. Shortly before trial, the claimant changed experts and sought permission to rely on Prof Roberts’ report.

The defendant applied for disclosure of documents recording expert A’s opinions as a condition of that permission. The claimant relied on privilege, proportionality and the absence of expert shopping. The central issue was the scope and exercise of the court’s power to impose disclosure conditions when permitting reliance on replacement expert evidence.

1. Application allowed in substance. The claimant was permitted to call Prof Roberts at trial only on condition that it disclosed expert A’s notes, preliminary report and any other document in which expert A had expressed his opinion on the issues before the 12 April 2016 mediation, subject to redaction of unrelated material.
2. The court’s power to impose conditions derives from Civil Procedure Rules 1998, rules 35.4 and 3.1(2)(m) and (3)(a), together with its general case-management powers. Permission to rely on a replacement expert may ordinarily be made conditional on disclosure of the first expert’s report.
3. The power is not confined to a final, signed or Part 35-compliant report. It extends to earlier drafts, provisional reports and other relevant documents containing the substance of the first expert’s opinion. The court must exercise the discretion reasonably and case by case.
4. Privilege is not an absolute answer. Requiring disclosure as the price of permission does not directly override privilege. The party may preserve privilege by declining to rely on the replacement expert.
5. Proof of expert shopping is unnecessary. Although the change in this case involved little, if any, expert shopping, disclosure was still justified. However, a strong case of expert shopping is required before imposing disclosure of attendance notes or memoranda recording discussions with the first expert, rather than documents expressing the expert’s own opinion.