In the 2016 English case of Coyne v Morgan & Anor (t/a Hillfield Home Improvement) [2016] EWHC B10 (24 May 2016), the defendant sought to adduce evidence from an expert witness, having previously retained a different expert. The original expert had met the plaintiff’s expert witness.

The plaintiff sought disclosure of the original expert’s report, having raised suspicion of ‘expert shopping’. The judge commented:

In my judgement, on their proper understanding, the authorities cited above do not show that the incidence of ‘expert shopping’ is a necessary or essential prerequisite which must be established before the court will exercise its general power or discretion whether to impose such a condition when giving a party permission to rely on a second replacement expert. I therefore reject Mr Rumney’s submission that the claimant would have to show that the defendant was expert shopping, in the sense of either rejecting the opinion of Mr Wells because they considered it to be unfavourable, or because they had lost confidence in Mr Wells, before the court could properly exercise its discretion to impose such a condition.”

The judge concluded on the evidence that this had not been a strong case of ‘expert shopping’, but nevertheless ordered disclosure of the substance of the original expert’s report:

As a condition of being permitted to adduce expert opinion evidence from Mr Mason, the defendants are to disclose the draft report of Mr Wells. However, any reference to or record of any without prejudice discussions between Mr Wells and Mr Duckworth (the claimant’s expert engineer) or any other person acting on behalf of the claimant, is to be redacted from that draft report before it is disclosed. What is to be disclosed is the substance of Mr Wells’ opinion on the expert issues in the case as set out in such draft report.”

See here for the full judgment.

See also: Allen Tod Architecture Ltd v Capita Property And Infrastructure Ltd [2016] EWHC 2171 (TCC) (26 August 2016)