Defendent insurers and brokers selecting experts to prepare reports in court cases will need to take extra care, following a Court of Appeal decision last week.
At issue in Hajigeorgiou v Vasiliou was whether the defendant needed the court's permission to appoint a second expert. The court decided against it in this particular instance. But it went on to confirm that, where permission is required to rely on a second expert, the first report would no longer be privileged and would have to be disclosed, as a condition of granting permission.
The confirmation of the loss of legal professional privilege on an abandoned expert's report is of concern. The Court of Appeal seemed concerned to avoid the practise of 'expert shopping' but surprisingly no mention was made of Carlson v Townsend, another Court of Appeal decision which allowed a claimant to do precisely that.
In Hajigeorgiou, the claimant, H, was seeking damages for breach by the defendant of a covenant in a lease for a fast food restaurant. Both sides agreed that a report by a restaurant valuation specialist was needed to comment on the value and profitability of the restaurant if trading had not been restricted as a result of the breach.
A witness statement prepared by the defendant's solicitor had named a particular expert, Watson, but the draft order, approved by both sides, made no specific reference to Watson as the intended expert. It simply gave the
parties 'permission to instruct one expert each in the specialism of restaurant valuation and profitability'.
The defendant decided not to rely on an interim report produced by Watson and instructed a second expert instead.
The claimant objected and argued that the defendant needed the court's permission to appoint a second expert and, if a second expert was appointed, that Watson's interim report should be disclosed. The trial judge agreed.
The Court of Appeal overturned this decision, accepting that, as the court order had only identified the experts by their field of expertise, not their actual name, the defendant did not need permission to appoint a second expert.
On the issue of disclosure, it went on to say that for a party to rely on a substitute report, it must waive privilege in the first report as a condition of being granted permission, following the earlier Court of Appeal decision in Beck v Ministry of Defence .
The Hajigeorgiou decision is a useful reminder that care must be taken when selecting an expert. Where possible, it is preferable to avoid naming a specific expert, identifying the field of expertise only.
Where an order granting permission to instruct expert evidence is silent on identity, it will allow some room for manoeuvre in terms of disclosure.
' Philip Tracey is a litigation partner with national law firm Beachcroft Wansbroughs