The 'Price' Of Expert Shopping

• Published date: 14 December 2021
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Construction & Planning
• Law Firm: Fenwick Elliott LLP
• Author: Katherine Butler

In the recent decision of Matthew Rogerson (t/a Cottesmore Hotel, Golf and Country Club) v Eco Top Heat & Power Limited¹, Mr Alexander Nissen QC (sitting as a Judge of the High Court) provides yet more reasons to be cautious when it comes to dealing with expert evidence. Katherine Butler discusses the Court's reasoning when it comes to the 'price' to be paid by any party seeking to 'expert shop' and, through which, how such practices are to be discouraged.²

The Facts

In June 2018, there was a catastrophic fire at the Cottesmore Hotel, Golf and Country Club (the Claimant), causing millions of pounds worth of damage and business interruption losses. At the time of the fire, Eco Top Heat (the Defendant), a contractor, was carrying out works to install windows in a first floor area, directly above a ground floor tunnel where the fire originated. The Claimant alleged that the fire was started by a) an employee of the Defendant discarding a cigarette or b) a loose spark from an angle grinder being used as part of the works. The Defendant denied these allegations and instead claimed that the fire was started by one of the Claimant's own employees discarding an unextinguished cigarette.

Shortly after the fire, solicitors for the Defendant confirmed to their counterparts that the "instructed expert for the fire investigation is Mr Nagalingam". Mr Anil Nagalingam proceeded to visit the site on at least two occasions, one of which was in the company of the experts similarly instructed for the Claimant and his insurer. Further to these visits, Mr Nagalingam attended conferences with his instructing solicitors as well as engaging in correspondence with the other experts through to October 2020.

The Claimant sent its Pre-Action Protocol for Construction and Engineering Disputes (the "Protocol") Letter of Claim on 4 February 2020. In its Letter of Response, the Defendant made no reference to any expert being instructed on its behalf. Following the issue of proceedings in August 2020, various pleadings had been exchanged and the parties were preparing for the Costs and Case Management Conference ("CCMC") in March 2021. As part of these preparations, the Defendants presented draft directions which included seeking the Court's permission to call on the expert testimony of Ms Emma Wilson, and not Mr Nagalingam.

Given this about turn in respect of the Defendant's forensic fire expert, the Claimant applied to the Court, not in order to challenge the substitution of Mr Nagalingam for Ms Wilson, but to seek conditions for the substitution. Such conditions being the disclosure of reports and/or other records detailing Mr Nagalingam's opinions as to the cause of the fire.

In resisting this application, the Defendant argued that such conditions were not warranted as this was not a case of expert...