EWCA Civ 1043 (Court of Appeal)
Should an expert’s report be disclosed if he is replaced by another?
This was a PI case between the claimant and the MoD, his former employer, concerning treatment the claimant received for his depression during his service in the RAF. This was a second appeal against an interlocutory order permitting the defendant to replace G as its expert. The defendant had instructed an expert, G, in whom it subsequently lost confidence and sought to replace.
Whether the defendant should disclose the report of the expert it was replacing before proceeding with the substitution of another expert.
The Court of Appeal (Phillips MR, Simon Brown LJ VP, Ward LJ) held that while it was understandable that an unsatisfactory expert report ought not be disclosed prior to the application to instruct a new expert, the situation was wholly different if the decision to replace had already been made and approved. In such a case there was no reason not to disclose the report of the outgoing expert. G’s report would be disclosed as a condition of the grant of permission to instruct a new expert.
A party should choose his original Part 35 expert with care! If you wish to change later on, you may be obliged to disclose the report which you found to be unsatisfactory.