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You Only Live Twice (But Not if You Are an Expert)*

By D

Ricky Edwards-Tubb v JD Wetherspoon plc [2011] EWCA Civ 136

Another brief note to mention this case which, despite not being housing-related in any way, is important in any matter where an expert is to be instructed.

The facts are not especially relevant but, in short, Mr Edwards-Tubb was injured at work. He served a pre-action letter on W and the parties then disagreed as to the appointment of an expert to assess his injuries. He then appointed an expert of his own with W’s insurers statingn that they would pay the expert’s fees if they lost the case. Proceedings were later issued with W having admitted liability and so the only issues were the extent of the injuries and the appropriate measure of damages. On the issue of proceedings it became apparent that Mr E-T had obtained a further expert’s report on which he now sought to rely. W sought disclosure of the previous report, admittedly not by right, but on the basis that the disclosure should be a precondition of the Court giving permission for the new report to be admitted under CPR 35.4.

The Court held that where an expert has been chaged once the provisons of a protocol have been embarked on then the same position as regards disclosure should be taken as after proceedings have been issued. Once parties have embarked on a protocol experts are instructed on a cooperative basis, even if instructed singly, and their duty is to the Court as oppose to those instructing them. On that basis, while the Court should tend toward permitting a party to change expert and not force them to rely on an expert in whom they have lost confidence, they should also not deprive the other party of the ability to rely on that same expert.

So, it is possible to switch horses during the race but the norm will be that a full disclosure must be made of the reasons for that switch and this will usually include disclosure of the report.

*An effort to continue the recent film theme with references to films starring Sean Connery

D is a solicitor specialising in landlord and tenant matters with a London firm.


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