Shopping For Expert Witnesses? You May Not Be Allowed To Go Shopping And If You Do, You Will Have To Get Your Wallet Out

The High Court recently overturned the decision of a Master who refused to allow a party to rely on a new expert witness where their former expert had declined to act. (Wedlake Bell acted for the successful Appellants.)

The dispute concerned an overage provision in an agreement for the sale of land, which enabled the purchaser to elect to have the open market value (OMV) of land determined by a tender process, with the purchaser having the option to match the highest tender. The Appellants claimed that they lost the opportunity of having the OMV determined by more robust means due to the failure in the drafting/advising of the agreement by the Respondents.

To determine the true OMV that should have been achieved, the Appellant's relied upon an expert, who opined that the Appellants incurred a loss of over £11m. In accordance with the pre action protocol, the Appellants provided the Respondents with details of the expert's view. Upon consideration of the Respondents' experts' views, the Appellant's expert later submitted a supplemental report which considered the Appellants loss to be less than the initial £11m figure due to the purchaser bearing the costs of the roof tax.

The claim was issued in 2008 and prior to the case management conference in 2013, the Appellants identified in their allocation questionnaire that they would rely on the expert evidence of a different expert. The Respondents questioned the change. The Appellants confirmed that the change was due to the former expert declining to act and the Appellants were entitled to call an expert of their choosing without a waiver of privilege or liability for costs thrown away as a result of the change. At the case management conference the Master agreed with the Respondents' submissions that the Appellants had advanced no good reason for the change in expert and therefore that, notwithstanding that the expert had declined to act, the Appellants must rely on the evidence of the former expert.

On appeal, the Appellants submitted (inter alia) that they were entitled to call an expert of their choosing and that the Master did not have the power under Civil Procedure Rule (CPR) 35.4(3) to make the order he did. The Appeal was granted and it was held that:

"Expert shopping" is a practice that courts will seek to outlaw. The principles raised by the authorities have to be applied in context. This case was not straightforward. There were...