The University of Manchester v John McAslan & Partners Limited & Anor.

When a party seeks permission to replace an expert, the court may make permission conditional on disclosure of the earlier expert’s report. The discretion applies whether the earlier report was prepared before or after proceedings began, and is not confined to personal injury claims.

Disclosure will normally be required to discourage expert shopping and ensure that relevant evidence is available. Wider disclosure of solicitor attendance notes or other privileged material requires strong evidence of expert shopping or a similarly compelling justification. The court must assess all the circumstances and the overriding objective.

For claims exceeding the costs-budgeting threshold, the court retains a broad discretion to order budgets. Approved budgets are assessed broadly for reasonableness and proportionality, not by detailed advance assessment.

The claimant brought substantial Technology and Construction Court proceedings concerning alleged defects in brickwork forming part of buildings at the University of Manchester. It alleged contractual breaches by the architect and contractor, and the contractor joined the structural engineers as a third party.

At a costs and case management conference, the claimant sought permission to rely on a replacement structural engineering expert. The contractor and architect sought conditions requiring disclosure of reports, other documents expressing the opinions of former experts, and solicitor attendance notes. The court also considered costs budgets and whether the claimant’s solicitors should be named as disclosure custodians.

The central issues were the scope of the court’s case-management discretion under CPR Part 35, the appropriate safeguards against expert shopping, and the exercise of discretion concerning costs management.

1. Expert evidence. The court declined to attach conditions to the claimant’s permission to call its replacement expert. Under CPR 35.4 and the court’s general case-management powers, the court may require disclosure of an earlier expert’s report when permission is sought to rely on a replacement. The discretion applies to reports prepared before or after issue and in TCC proceedings as well as personal injury litigation. The usual course is disclosure of reports containing the substance of the earlier expert’s opinion.
2. The underlying purposes are to discourage expert shopping and to ensure that the court and the parties have relevant material. The court may also consider whether an earlier expert’s work contains relevant primary factual evidence, such as evidence about the physical condition or deterioration of a building.
3. Disclosure of wider privileged material, including solicitor attendance notes recording discussions with an expert, requires a much stronger case. Such documents may inaccurately record the expert’s words, contain non-expert material, invade privilege and generate disproportionate costs. Strong evidence of expert shopping, or at least a very strong appearance of it, is required before such an order should be made.
4. The fact that experts’ views develop as investigations continue, particularly concerning the scope of remedial works, does not by itself establish expert shopping. On the facts, the existing disclosure sufficiently protected the interests of the defendants, third party and court. The former structural engineer had ceased acting because of ill health, and there was no proper basis for treating the change as expert shopping.
5. Costs management. The court approved the budgets. The discretion under CPR 3.12 to require costs budgets in claims above the specified threshold is broad and unfettered. There is no presumption against making an order. The court must consider all the circumstances, including value, complexity and proportionality. Review of unagreed budgeted costs is conducted with a broad brush to determine whether they fall within a reasonable and proportionate range.
6. The court declined to name the claimant’s solicitors as custodians because relevant non-privileged documents were likely also to be held by the claimant. The claimant’s permission to call the replacement expert was granted without the proposed conditions, and the costs budgets were approved.