Avantage (Cheshire) Limited & Ors v GB Building Solutions Limited & Ors

The court has a general discretion under the Civil Procedure Rules 1998 and its case-management powers to permit a party to replace an expert. The discretion must be exercised having regard to all material circumstances and the overriding objective. Permission will usually be granted, but may be conditional upon disclosure of the former expert’s reports and other documents containing the substance of the expert’s opinion. Disclosure of inspection notes, interview notes and other primary factual material may also be ordered where that information is uniquely valuable and no longer otherwise available. Solicitors’ attendance notes ordinarily remain protected by privilege, particularly where there is no expert shopping or other culpable conduct.

The claimants sought permission to replace two experts in proceedings concerning a fire at Beechmere Retirement Village. Ms Hooton, the forensic scientist dealing with the cause, origin and spread of the fire, was unable to continue because of serious illness. The claimants also sought to replace Mr Wise, the fire engineer, because they preferred to rely on Dr Ketchell’s evidence and considered that there was substantial overlap between the experts’ roles.

The defendants accepted or did not oppose substitution in principle, but sought disclosure of the former experts’ reports, notes, other opinion documents and solicitors’ attendance notes. The central issues were whether substitution should be permitted and what conditions should accompany permission.

1. General discretion. The court had power under CPR 35.4 and CPR 3.1(2) to permit a party to change the expert on whom it relied. The discretion had to be exercised in accordance with the overriding objective and having regard to all the material circumstances.
2. Replacement of Ms Hooton. The claimants were forced to replace Ms Hooton because of serious illness. There was no expert shopping or criticism of their conduct. It would therefore be unjust to require disclosure of her reports, draft reports or other documents recording her opinions, and there was no justification for disclosure of solicitors’ attendance notes recording those opinions.
3. That conclusion did not prevent conditions requiring disclosure of documents containing primary factual information. Ms Hooton’s site-inspection notes and notes of interviews with witnesses recorded evidence about the condition of Beechmere and observed defects which could not be obtained through a later inspection, since the surviving part of the property had been demolished. Fairness and transparency required that material to be made available to the relevant experts.
4. Replacement of Mr Wise. Although the application raised legitimate concerns about expert shopping, it was appropriate to grant permission. Mr Wise was qualified and available, but the claimants had explained that they lacked confidence in him. The adjourned trial and revised timetable meant that the other parties would suffer no prejudice.
5. Permission to replace Mr Wise was conditional upon disclosure of his three reports, including drafts, and any other documents in which he had expressed opinions within the scope of the original permission, including sprinkler design and its effect on fire spread. Solicitors’ attendance notes were not required because disclosure would create practical difficulties and unnecessarily invade privilege in the absence of culpable conduct.
6. Permission was granted for both substitutions on those conditions. Any consequential matters not agreed were reserved for written submissions or a further hearing.