All ER D 229
A late change in experts upheld despite reason being inadequate. A lucky escape or a new judicial approach?
This was a claim by a firm of accountants for professional fees and a counterclaim for damages for professional negligence. Prior to trial the respective experts had met and drafted a statement of agreed and disputed matters. Before that document received approval the defendants informed the claimants that they had disinstructed their expert on the grounds that he was acting for them on a separate VAT matter and so was no longer a tenable independent expert. They further said they had instructed a new expert.
The claimants objected to the change of expert on the grounds of costs and time that would be wasted. They applied to the court for an injunction to preclude the use of the replacement expert, or alternatively an ‘unless order’, and suggested abuse of process on the part of the defendants.
Whilst Lindsay J accepted that the defendants’ explanation for their change of expert was inadequate, that was not sufficient to grant the application made by the claimants. There were insufficient grounds to make a finding of an abuse of process although there was a suspicion that it had occurred. If there was good reason for the replacement then it would be unfair to compel the defendants to continue to instruct an expert in whom they had lost confidence. The applications were dismissed.
When you choose an expert witness you should do so with considerable care. It is an important decision and should not be taken lightly. It may be felt that the defendants in this case were very lucky to be allowed to change the expert, especially when their stated reason for doing so was inadequate. It is obviously unhelpful to a party’s cause for it to be tarnished with even the suspicion of having abused the process of the court or attempted to do so. All of that could open up the party to embarrassing questioning in cross-examination or by the judge. It would (or at least should) also place the replacement expert witness in a position of being even more careful than usual in ensuring that he or she acted with strict objectivity and was uninfluenced by the exigencies of the litigation and his or her instructing party. The conduct of the replacement expert will tend, in such circumstances, to be the subject of extremely close judicial scrutiny (as well as that of the other side in the case).