Offshore Litigation

Blog

Offshore Litigation

Contributors

Jonathan Addo
Jonathan Addo
  • Jonathan Addo

  • Partner
  • British Virgin Islands
Ian Mann
Ian Mann
  • Ian Mann

  • Partner
  • Hong Kong
Nick Hoffman
Nick Hoffman
  • Nick Hoffman

  • Partner
  • Cayman Islands
Vicky Lord
Vicky Lord
  • Vicky Lord

  • Partner
  • Shanghai
Chai Ridgers
Chai Ridgers
  • Chai Ridgers

  • Partner
  • Hong Kong
William Peake
William Peake
  • William Peake

  • Partner
  • London
Peter Ferrer
Peter Ferrer
  • Peter Ferrer

  • Partner
  • British Virgin Islands
Jeremy Child
Jeremy Child
  • Jeremy Child

  • Partner
  • London
Claire Goldstein
Claire Goldstein
  • Claire Goldstein

  • Partner
  • British Virgin Islands
Jayson Wood
Jayson Wood
  • Jayson Wood

  • Partner
  • Cayman Islands
Phillip Kite
Phillip Kite
  • Phillip Kite

  • Partner
  • London
Stuart Cullen
Stuart Cullen
  • Stuart Cullen

  • Partner
  • British Virgin Islands
Lorinda Peasland
Lorinda Peasland
  • Lorinda Peasland

  • Consultant
  • Hong Kong
Paul Madden
Paul Madden
  • Paul Madden

  • Partner
  • Cayman Islands
Jessica Williams
Jessica Williams
  • Jessica Williams

  • Partner
  • Cayman Islands
Paula Kay
Paula Kay
  • Paula Kay

  • Partner
  • Hong Kong
Andrew Thorp
Andrew Thorp
  • Andrew Thorp

  • Partner
  • British Virgin Islands
Henry Mander
Henry Mander
  • Henry Mander

  • Partner
  • Cayman Islands
Andrew Johnstone
Andrew Johnstone
  • Andrew Johnstone

  • Partner
  • Hong Kong
Nicola Roberts
Nicola Roberts
  • Nicola Roberts

  • Partner
  • Hong Kong
  • Singapore
Julie Engwirda
Julie Engwirda
  • Julie Engwirda

  • Partner
  • Hong Kong
Paul Smith
Paul Smith
  • Paul Smith

  • Partner
  • Cayman Islands

The cost of expert shopping

The English High Court confirmed the default position of requiring disclosure of a first expert’s report or draft report where a party seeks to change experts without good explanation.

In Burke v Imperial Healthcare [2019] EWHC 3719 (QB), Mrs Justice Tipples allowed the claimant’s appeal against a Master’s decision allowing the defendant to change experts without disclosing its first expert’s report or draft report. It was held that without an explanation making it clear there is no issue relating to expert shopping, there will always be a hint of expert shopping and that is enough, upon a change of expert, to give rise to the imposition of the condition requiring disclosure of the previous expert’s report or draft report. The object of imposing the condition is to prevent expert shopping and ensure full information is available.

Where a party wishes to change experts, the proper procedure should be a letter to the other side setting out what they want to do and why. If no agreement, it will need to be determined at a case management conference or by separate application. This presupposes that any application to change experts should be on notice. If a party fails to give notice then that party will be under a duty of full and frank disclosure extending to all matters of fact and law necessary to show the Court that there is no possibility or hint of expert shopping and that by changing expert significant relevant material is not being withheld from the Court.

Here, the defendant chose to raise this issue for the very first time at the end of the case management conference. The defendant accordingly came under a very clear obligation to make full and frank disclosure of all material information relating to the application concerning the change of expert, which it failed to do. The Master had not been informed of the original expert’s extensive involvement in the defendant’s case or his experience; nor was he reminded of the relevant legal principles. The Master relied on what he was told by the defendant, as he was entitled to do, and was misled into making an order that was wrong in the circumstances. The defendant was ordered to disclose the first expert’s report. 

Interestingly, there was no discussion of how this ‘usual condition’ interacts with litigation privilege and it may be presumed that, in line with previous authority, waiver of privilege over the expert’s report was simply the price to pay to obtain the Court’s permission to adduce a new report and avoid the charge of expert shopping.

The cost of expert shopping

Leave A Comment