The effect of not stipulating the expert by name

[2005] EWCA Civ 236 TEDR Volume 11 Issue 1

The Facts

This was a claim for damages for breach of a covenant of quiet enjoyment. Liability had been established and the remaining issue was assessment of damages.

At a case management conference the judge had given both parties permission to instruct an expert each in the area of restaurant valuation. The Defendant instructed an expert who visited the Claimant’s premises, but shortly afterwards a second expert attempted to inspect the premises. The Defendant had decided he did not wish to rely on the first expert (having seen his ‘draft interim’ report) and had instructed a second expert.

The Claimant applied for an order that the Defendant be barred from relying on the second expert report, and to have the first expert’s report disclosed.

At first instance the judge found that the Defendant did not have permission to instruct the second expert; he needed permission in order to so rely; but that he would give permission on condition that the first report be disclosed to the Claimant’s solicitors.

The Issues

Whether it was correct that the Claimant had needed permission to call a second expert; and if he did need that permission, whether giving it on condition of disclosing the first report was lawful.

The Decision

Relying on the unreported case of Beck v MoD [2003] EWCA 1043, the Court of Appeal held that if permission had been required under the terms of the order, it was lawful and proper for that permission to have been granted conditional upon the disclosure of the first report – “Expert shopping is undesirable and, wherever possible, the court will use its powers to prevent it” (at paragraph 29 of the judgment).

However, on the issue of whether permission had, in the instant case, been required, the court found that it had not, and so allowed the appeal. What the court said as to this is instructive and is quoted below:

14. Mr Clarke’s submission is quite simple. He draws attention to the fact that CPR 35.4(3) provides that permission to call an expert or put in evidence an expert’s report shall be in relation to “the expert named or the field identified”. In the present case, there can be no doubt that the order did not identify a named expert; it identified the field of expertise of the expert for whom permission was given. If the order had named Mr Watson, Mr Clarke concedes that the defendant would have had to apply to the court for permission to rely on Mr Negus. It cannot be argued that the order was not correctly drawn, nor was it so argued before the judge. The order followed the wording of the draft agreed between counsel and submitted to the associate after the conclusion of the case management conference.

16. The judge seems to have construed the order as giving the defendant permission to rely on the evidence of Mr Watson, but in our judgment the order plainly and unequivocally identifies the experts only by their field of expertise. Moreover, we cannot accept the submission that there was an accidental slip or error here. The terms of the order were agreed by counsel. Despite the details given by Mr Christou about Mr Watson and his rates of charging, it is not surprising that the parties agreed, and the judge approved, an order giving the defendant permission to rely on an expert in Mr Watson’s field of expertise, rather than on Mr Watson by name. An order giving the defendant permission to rely on an expert in Mr Watson’s field would have served his purposes just as well. The significance of giving the details of Mr Watson’s expertise could have been no more than evidence of the fact that there are experts in this field.  The relevance of Mr Christou’s evidence of charging rates was not only to indicate that Mr Watson’s rates were reasonable and not disproportionate, but also to show that, if the claimant were to instruct an expert, his or her fees were also likely to be reasonable and proportionate.

17. Even if it had been made explicitly clear that the defendant was asking for permission to rely on the evidence of Mr Watson, it would not have been perverse to make an order simply giving permission to rely on one expert in the field of restaurant valuation and profitability (ie the expertise of Mr Watson). The mere fact that such an order was made in that situation would not, of itself, suggest that the order was an accidental slip on the grounds that it did not give effect to the intention of the judge who made the order.

18. We do not find it at all surprising that the order did not identify the name of the expert who could be relied on by the defendant in circumstances where he could not do the same in relation to the claimant. It would have been possible to make an order giving the defendant permission to call and rely on the report of Mr Watson, and giving the claimant permission to call and rely on the report of an unnamed expert in the field of restaurant valuation and profitability. But that would have been an unusual order to make. Judge Levy may well have taken the view that, if he could not restrict the claimant to a named expert, then it would not be right to restrict the defendant to a named expert. In these circumstances, we find it impossible to hold that the failure to name Mr Watson in the order of 21 July was an accidental slip.