In a somewhat unusual case, a litigating party was ordered to disclose documents generated at the pre-action stage in return for being able to change experts, in what the court found was a clear case of ‘expert shopping’. The experienced commercial litigation lawyers at ParrisWhittaker are experienced in securing effective disclosure orders for clients in complex cases.
What is a disclosure order?
A disclosure order is a court order requiring an individual or business to disclose documents or information. Such orders can be crucial for individuals or businesses requiring access to documents or other information in the pursuit of legal proceedings. An order for disclosure is a court order and must be complied with.
Court have wide discretion when granting disclosure orders. For example, the UK court recently` ordered disclosure as a condition of granting permission to rely on an alternative expert, despite the original expert having been engaged at an early stage.
What’s the background to this case?
Following a serious hotel fire, the claimant – a hotel, golf and country club – claimed damages of £7,642,450 against the respondent – a small firm of building contractors. Liability was denied. Forensic fire investigators had been appointed pre-action to investigate the cause of the fire. Notably, there was no relevant protocol relating to the nomination of experts.
In the course of proceedings, the defendant sought permission under the Civil Procedure Rules to call a different expert in relation to the cause of the fire. The hotel requested an explanation for the change in expert but was unhappy with the response.
The claimant then requested that permission for the new expert be conditional upon disclosure of certain privilege documents. These included an attendance note between the defendant’s lawyers and the expert in which the expert referred to his own views on causation.
It was the claimant’s contention that there was ‘expert shopping’ on the defendant’s part, but the defendant argued that it was justified in changing expert. It argued that its expert of preference had particular experience in cigarette-induced fires, unlike the original expert.
What did the court decide?
Permission for a new expert was allowed on condition that privilege documents were disclosed. Litigation was still in very early stages and the court noted that its jurisdiction to make an order imposing such a condition sought by the claimant can, in certain circumstances, attach to privileged reports or opinions generated before proceedings are issued, as well as after.
The court also drew a clear inference on the evidence of ‘expert shopping’, which warranted waiver of privilege over documents going beyond the expert’s report.
What should we do?
For expert, urgent legal advice on disclosure orders, contact us now and we can begin working on your behalf. It is the case that some cases are particularly complex, but ParrisWhittaker specialist commercial litigation lawyers are highly experienced, taking a robust and strategic approach to every case.
