Expert Shopping: A Price Worth Paying?

Parties tempted to ‘shop around’ for a preferred expert to support their case should consider whether they have genuine reasons for doing so before making that decision.  The specialist litigation lawyers at ParrisWhittaker are experienced in advising the parties on both sides on selecting and instructing expert witnesses – whether that’s in a personal injury claim or any other civil claim for compensation. 

What is ‘expert shopping’?

Expert shopping is, essentially, the often dubious practice of changing expert witnesses, simply because the instructing party is unhappy with the expert’s report. The practice is frowned upon as  not in keeping with the Civil Procedure Rules, which clearly state that an expert’s overriding duty is to the court and they must be impartial. 

Importantly, this duty overrides any obligation to the instructing party – a principle that can frustrate some litigants. A litigant who becomes unhappy with what the expert has produced may then wish to ‘shop around’ for an expert who may better support their case.  Expert shopping is not specifically prohibited by the courts – but the courts discourage it, often ordering the litigant to disclose the original expert report to the other side. 

The UK’s High Court recently ruled on the issue where two experts were be substituted – for different reasons.  he ruling has persuasive authority on the courts in The Bahamas and should be noted.

What’s the background?

The case followed a huge fire which destroyed a retirement village in Cheshire, England.  

The claimants sought to substitute two experts at a point in proceedings where the trial was imminent. The two experts were a forensic scientist and a fire engineer. In the case of the forensic scientist, there was little concern as the claimant’s reasons related to the expert’s ill health – these were circumstances beyond the claimant’s control. Therefore, the court imposed no conditions that her reports be disclosed. 

However, the reason for substituting the fire engineer was more dubious: the claimants were simply unhappy with the engineer as an expert. The defendant did have a legitimate concern that it appeared to be an exercise in expert shopping. The judge stated: “[The engineer] is qualified and available to give evidence at trial on the issues he has been asked to address and he has carried out substantive expert work on the case.”

Even though the court said it is in the interests of justice that the claimants should have permission to rely on an expert in whom they have confidence – conditions would be imposed on permitting a substitute expert. The engineer’s three reports already produced were to be disclosed to the other side – including any drafts and any further documents on which he had expressed opinions on relevant matters. 

The ruling is a reminder that while the courts accept that circumstances may necessitate a change in expert witnesses; a choice to change experts because the litigant would prefer another expert will come at a price. The other side will undoubtedly be permitted to read the reports and opinions so far produced by the expert who was initially instructed. 

If you have any concerns about obtaining expert witness testimony to support your case, talk through your case with the experienced litigation solicitors at ParrisWhittaker as early as possible. You can contact us at info@parriswhittaker.com or +1.242.352.6112

1Avantage (Cheshire) Ltd & Ors v GB Building Solutions Ltd & Ors [2023] EWHC 802 (TCC)