Summary

A master had erred in not considering the practical effect of his refusal of permission to parties seeking to rely on a new expert where the initial expert had expressed an unwillingness to continue. The fact that that expert was no longer willing to act, and that one side would be without any effective expert evidence were the master's order to stand, was sufficient to grant permission to rely on a new expert.

Facts

The appellants (X) appealed against an order of a master refusing permission to rely on a new expert's report in a property transaction dispute with the respondents (Y).

The first appellant, who owned land that was likely to be granted planning permission for residential development, had entered into a sale agreement with a land trader. The first respondent was the solicitors' firm that the first appellant had instructed in relation to that transaction; the second respondent was a firm of chartered surveyors. The agreement contained a formula to calculate the price for the land, as well as mechanisms to calculate a price where the parties failed to agree. Under the agreement, the land trader was to pay a deposit pending the grant of planning permission, and once it was obtained a top-up payment of 50 per cent of the open market value (OMV), less the deposit, was to be paid. In the substantive proceedings, X alleged that the process under the agreement to determine the OMV was defective with the result that they received £23 million less than they ought to have, and that if liability were to be established, quantum of loss was to be calculated by reference to the lost opportunity to achieve a top-up price based on a true OMV rather than the artificially low one under the agreement. In support of their case, X initially relied on a preliminary report of an expert (S), who in a subsequent report, and following Y's own expert's criticism of his approach, revised his opinion in light of his acceptance that a buyer would have to bear the roof tax implications of the transaction. S accordingly reassessed the OMV downwards. Following failed mediation, X in an allocation questionnaire identified an alternative expert on whom they wished to rely in S's place. Y questioned the change and raised the question of wasted costs; X responded asserting S was no longer willing to act, that they were entitled to choose another expert, and denied any waiver of privilege or liability as to costs thrown away. At a case management hearing, the master refused X's application for permission to allow a change of expert on the basis that X had no good reason for the change, save for the fact that S was no longer willing to continue as X's expert. The issues were whether (i) the principles in relation to the change of an expert in personal injury cases were applicable in the instant case; (ii) the master had erred in not considering the practical effect of his order; (iii) if permission were granted to rely on a new expert, X ought to bear all of Y's wasted costs.

Held

(1) Although all of the authorities cited before the master were cases dealing with personal injury, the relevant principles were applicable across all fields of litigation; expert shopping was a practice that the court sought to outlaw. There was no difference in principle between a change of expert instructed as part of pre-action protocol procedure and a change of expert instructed post-issue, Edwards-Tubb v JD Wetherspoon Plc [2011] EWCA Civ 136, [2011] 1 W.L.R. 1373 followed. The principles established in Edwards-Tubb were more widely applicable than merely to personal injury litigation; however, some essential features of personal injury cases were to be borne in mind, namely that there was a large volume of personal injury litigation with consequently rigid rules to keep litigation within manageable bounds; early expert medical reports were provided for in personal injury pre-action protocol; once an expert had been agreed, any change ordinarily required considerable justification and was generally extremely limited; monitoring of the court's time and resources was to be expected, and the appointment of a joint expert was encouraged, Edwards-Tubb considered. (2) The instant case was not a run-of-the-mill, straightforward claim in relation to liability and quantum; there were differing views in relation to valuation. The effect of the master's order also had to be considered: if the order were to stand, X in theory had a witness who was unwilling to support their substantive claim and X would not want to call such a witness. The reality was that X could be without any effective expert evidence were the order to stand. In deciding that X did not have a good explanation for a change in experts, the master had refused permission without considering the effect of that refusal on X's case and he had referred neither to the overriding objective, nor the need to ensure justice in the circumstances of the case. The master had erred in principle by failing to consider the practical effect of his order. Where a change was sought in relation to an expert who had been active in the pre-action protocol phase some reason was required for the change, and that reason could not be an obviously bad one; the strength of that reason was to be assessed to some extent by the effect of the change. In the instant case, S had no longer been willing to continue: that was a good reason not to proceed with him as an expert. S did not have to justify himself in relation to no longer wishing to be an expert in the instant case; his reasons were for a matter for him. S had expressed an unwillingness to continue, and X did not want to rely on his evidence in those circumstances: that was sufficient for the court to consider permitting a change of expert. As the trial was 10-11 months away, there was no reason why, where there was appropriate cooperation, a trial date could not be set or appropriate discussions between the experts could not take place. X were entitled to call the alternative expert as an expert witness. (3) Although there was no doubt that costs had been thrown away and that X had to meet those costs, a condition of permission to rely on a new expert witness was that X should pay, within 21 days, half of the expenses of each of the respondents that had been incurred in considering S's reports.

Appeal allowed