In the recent case of Lee v Colchester Hospital University NHS Foundation Trust, the claimant brought a claim against the defendant after suffering a serious spinal injury. The parties had been granted permission to rely on expert evidence. The trial was due to take place in two weeks’ time.
Following an exchange of experts’ reports, the claimant’s experts produced supplemental reports that contained certain observations made after reviewing the defendant’s expert evidence. The claimant applied to rely on these supplemental reports. The High Court judge stated that, as the exchange of reports was relatively recent, and the meeting of experts had not yet taken place, it was right to endorse the claimant’s approach. The supplemental reports would allow the trial judge to properly determine the case with the “complete expert opinions of all of the experts”.
The defendant had become aware that their expert (X) had been dismissed from the NHS, for reasons that were unknown. Therefore, they applied to rely on new expert evidence, arguing that X’s credibility had been compromised. The claimant objected, stating that the defendant was “expert shopping”, and the change would not represent a like for like alteration (the claimant’s expert was a specialist radiologist, whereas the defendant’s new expert was a consultant).
The court allowed the change in expert, provided that X’s report was immediately disclosed to the claimant. On an application to change experts, the court must exercise its discretion in accordance with the “overriding objective” in the Civil Procedure Rules. Citing Guntrip v Cheney Coaches Ltd  the court considered that the later the application, the less ready it should be to allow a change in expert. However, while appreciating that the application came late, it had been made as soon as the situation was appreciated, and it appeared that there was “a very genuine reason for seeking to change expert”. Refusing the application would force the defendant to call an expert where there was a clear issue regarding credibility. This was not an expert shopping case.
Chris Harper is a partner and head of the dispute resolution team in Exeter. He specialises in commercial litigation and is named as a leader in his field by independent guides to the legal profession Legal 500 and Chambers. To contact Chris please call 01392 210700 or email email@example.com.