A little while ago, Simon Murray joined Annie Clift from Limeslade and Katherine Butler of Fenwick Elliott to discuss the issue of expert shopping in construction disputes, what it is, and how it should be approached in practice.
The below article summarises the discussion, and you can watch the full recording below.
Watch the episode here:
What is Expert Shopping in Construction Disputes?
Expert shopping refers to the replacement of an expert during the preparation of a report, typically in favour of one whose opinion better supports a client’s case.
The courts take a firm stance on this. Under CPR Part 35, an expert’s overriding duty is to the court, not to the party instructing them.
In practice, identifying expert shopping is not always straightforward. There are legitimate reasons why an expert may need to be replaced. For example, proceedings can span several years and an expert may retire, become unwell, or face diary constraints. In other cases, a client may lose confidence in their expert or feel that a different expert would present evidence more effectively in court. There may also be concerns that certain lines of investigation have not been fully explored, or in rare cases, that the expert’s conclusions are flawed.
However, any change of expert after reports have been prepared will require court approval. The safest stage to consider a change is early on, ideally during the pre-claim assessment of the case. Beyond that point, justification becomes critical.
Where no clear or legitimate reason is provided, the court may infer that expert shopping has taken place. Importantly, this is not always deliberate. A client may claim dissatisfaction with the expert personally, when in reality the issue lies with the opinion provided.
What do the Courts Say?
The principles surrounding expert shopping have been well established through case law over the past two decades, particularly within the Technology and Construction Court (TCC).
The courts adopt an interventionist approach to expert evidence. They control carefully permitted evidence, allowing what is necessary to resolve the dispute.
Permission is required both to rely on expert evidence and to substitute an expert. Where a substitution is requested, the court may impose conditions. These can be significant and, in some cases, detrimental to the client’s position.
Each case is considered on its own facts. The court will assess whether there is evidence, or even a strong inference, of expert shopping. In some instances, permission to rely on a new expert may be granted only on the condition that earlier reports are disclosed. This can result in previous opinions being introduced into the proceedings.
There is also potential for the opposing party to seek disclosure of communications, including emails or other correspondence, to test whether expert shopping has occurred. The court must therefore balance the need for transparency with the protection of privileged communications.
Avoiding Expert Shopping
For experts, maintaining independence is essential. A useful test is to consider whether the same advice would be given if acting for the opposing party. The opinion should be grounded in evidence and capable of standing on its own.
Clarity from the outset is key. Experts should communicate their independence clearly to clients and ensure that early views are expressed carefully, without becoming tied to a position before all evidence has been considered.
Where an expert is approached to replace another, it is important to understand why. If the reason appears to be that a more favourable opinion is sought, this may indicate expert shopping. That said, the full context may not always be known.
Experts should avoid giving premature or unprepared opinions. If an early view is requested, it should be clearly caveated as provisional.
Ultimately, an expert’s role is to provide honest opinions based on the available evidence. This may require difficult conversations with clients, but providing a realistic assessment early on is critical to the effective management of a case.
Many experts will test their own conclusions by adopting a devil’s advocate approach or seeking peer review. This reflects the need to ensure that any opinion given can withstand scrutiny in court.
How to Select an Expert
Selecting the right expert is an important step. Recommendations from colleagues can be a valuable starting point, particularly where there is prior experience of an expert’s performance. Professional panels, such as those maintained by RICS, IStructE or the ICE, can also provide a reliable benchmark for quality and expertise.
It is also worth considering whether the expert has experience giving evidence in court. Producing a report is one aspect, but the ability to defend that opinion under cross-examination is equally important. Consider your expert’s track record – do they have experience in the area for which you need expert advice or testimony?
If you are looking to appoint an expert, William J Marshall & Partners provide specialist forensic investigation and expert advice across construction and engineering projects. Get in touch to discuss how we can support your case.