Stuart Coyne v (1) Alec Morgan (2) Alex Harrison (T/A Hillfield Home Improvement) (2016) QBD (TCC) (Judge David Grant)

The defendants applied for permission to rely on evidence from a second expert, to replace the draft report of their original expert. The issue was whether, as a condition of them being given permission, they should be required to disclose the draft report and any other material produced by the first expert.

HELD: The court had a wide and general power to exercise its discretion whether to impose terms when granting permission to adduce expert opinion evidence, under CPR r.35.4(1) and the wide and general nature of its case management powers under r.3.1(2)(m). In exercising that power or discretion, it could give permission for a party to rely on a replacement expert, but that was usually exercised on condition that the first expert’s report was disclosed (Vasiliou v Hajigeorgiou [2005] EWCA Civ 236 followed). However, strong evidence of expert shopping was required before imposing a term that a party had to disclose forms of documents other than the original expert’s report, such as a solicitor’s attendance note of discussions with the original expert. There was no evidence of expert shopping in this case. Accordingly, the defendants were required to disclose the draft report but nothing further.