Jenni Glover & Anor v Fluid Structural Engineers & Technical Designers Limited & Ors

Permission to replace an expert is a case-management decision governed by the overriding objective. Serious non-compliance by legal representatives does not automatically require depriving the client of expert evidence. The court must balance enforcement of the rules, fairness to the opposing party, proportionality, the importance of the evidence and the effect on the trial timetable.

Conditions requiring disclosure should address the purposes of preventing expert shopping and ensuring that the court has full information. They are not automatic. Where existing disclosure sufficiently addresses those concerns, further disclosure of privileged communications may be unnecessary.

The claimants sought permission to replace their structural engineering expert, Mr Andrew Hardy, after admitting that their solicitors had impermissibly amended drafts of the experts’ joint statement and had deleted metadata. AXA XL’s application to revoke permission to rely on Mr Hardy’s evidence was effectively conceded. AXA XL resisted permission for a replacement expert unless extensive further disclosure was given.

The claimants also sought directions concerning an updated Schedule of Loss and an extension of time. The court considered whether a replacement expert could be instructed without losing the September 2024 trial date, what disclosure should accompany that permission, and whether quantum should await an appeal concerning a party wall award.

1. Replacement expert. Permission to rely on Mr Hardy was revoked, and permission was granted to rely on Richard Tant. The interference by the claimants’ solicitors in the joint-statement process was substantial and impermissible, contrary to paragraph 13.6.3 of the TCC Guide and the principles governing expert evidence. Nevertheless, the claimants themselves had not been involved, structural engineering evidence was central to liability, the replacement timetable preserved the trial date, and the evidence did not establish an attempt to alter Mr Hardy’s views on the central issues.
2. Applicable approach. The discretion had to be exercised under the overriding objective, including proportionality, expedition, fairness, allocation of court resources and enforcement of compliance with rules and orders. The court considered the authorities on expert replacement and conditions, but the decision remained fact-sensitive.
3. Disclosure conditions. The disclosure already given, including Mr Hardy’s report, draft joint statements and relevant exchanges with the opposing expert, was sufficient to ensure that full information was available. Further disclosure of attendance notes and emails between Mr Hardy and his solicitors was refused. The court was not persuaded that earlier draft views could not represent Mr Hardy’s objective views, and further disclosure risked the practical and privilege difficulties identified in Avantage.
4. Timetable and related proceedings. The structural engineering and quantum directions could preserve the September trial. Neither liability nor quantum should be adjourned pending the party wall appeal. The course of these proceedings should not be dictated by proceedings not before the court, involving parties whose views were unknown, and then subject to an ADR stay.
5. Costs and directions. The claimants were ordered to pay the costs thrown away by the replacement expert, the relevant application costs, and 30% of AXA XL’s costs of considering Mr Tant’s structural engineering evidence, on the indemnity basis if not agreed. The claimants were granted permission to rely on Mr Tant, subject to the specified timetable and access to the same material as AXA XL’s expert.

First-instance case-management decision. No appellate history is stated in the judgment.