Disclosure: a Condition of Court Order

The High Court has jurisdiction to allow a litigant to change its expert witness, subject to terms that can include an order for disclosure; but what are the limits to such discretion?

The claimant is a hotel, golf and country club (‘the hotel’) where a disastrous fire had taken place. It criticised the defendant’s application for a change in expert as a clear case of “expert shopping”, a charge that the court sided with.

What’s the background?

In Rogerson (t/a Cottesmore Hotel, Golf and Country Club) v Eco Top Heat & Power Ltd [2021] EWHC 1807 (TCC), the claimant hotel is seeking damages of more than £7.5m against a firm of building contractors following the fire. The contractors were working in a first-floor room at the time.

Forensic fire investigators were appointed early on (pre-action) to investigate the cause but the hotel’s view was that the fire was likely caused by a discarded cigarette from one of the defendant’s employees, or by a spark from an angle grinder. However, the defendant denies liability. There was no relevant protocol relating to the nomination of experts.

The defendant sought permission under CPR 35.4 to change its expert in relation to the cause of the fire. The hotel asked for an explanation for the proposed change but was unhappy with the response, so it asked the court that any permission given be made conditional upon disclosure of certain privilege documents.

Among those documents was an attendance note between the defendant’s lawyers and the original expert. In that note, the original expert had referenced his view as to causation.

The defendant accepted that the court did have jurisdiction to grant such an order because an application for permission to rely on expert evidence under CPR 35.4 is a procedural vehicle to which such conditions may attach.

The claimant argued that the defendant was ‘expert shopping’. The defendant countered that it was justified in changing expert on the basis that its preferred expert had particular experience in cigarette-induced fires (unlike the original expert).

What did the court decide?

The court ordered that the defendant must disclose certain documents generated at the pre-action stage in return for permission to change experts – even though the original expert had been engaged at an early stage to carry out an inspection and provide a report. The judge noted that when the defendant's solicitors were asked who their expert was, they named the original expert in a way that clear and unqualified.

The court also drew a clear inference on the evidence of ‘expert shopping’ for tactical reasons. This warranted waiver of privilege over documents going beyond the expert’s report. In the event, the disclosure ordered by the court was limited – most notably to the attendance note to the extent that it set out or referred to the original expert’s views on causation. Otherwise, the note was subject to redaction.

No further orders for disclosure were required as a condition because the court was either satisfied that no such documents were in existence or they had been disclosed voluntarily.

Disclosure orders are a crucial tool during legal proceedings, enabling litigants to advance their case fairly. This ruling illustrates how the court is prepared to use its discretion to order disclosure on an application to change expert.


Posted on 16.09.21