Mary Stallwood v G H David and M Adamson [2006] EWHC 2600 25 October 2006 (England and Wales)
The court has the power to direct that discussions between experts from each side should take place. If, after the experts' meeting has taken place, the expert completely changes his mind, can a further expert be appointed?
The court ruled that the mere fact that an expert has changed or modified his opinion following an experts' meeting cannot by itself be a reason to allow a party who is disappointed with the change or modification of opinion to adduce evidence from another expert. Although the CPR does not rule out the ability to call a further expert, this will rarely be appropriate.
The court concluded that the claimant had a sense of grievance because the judge had frequently interrupted the claimant's counsel and had given the impression that he thought the claim was exaggerated. This was apparently based on his own experience of backache (which he had suffered for 40 years) rather than the claimant's own evidence. For this additional and exceptional reason it was appropriate to consider the claimant's application afresh.
The judge commented that it would have been helpful if the claimant had found out why the expert had changed his mind. He suggested that, when making such a request, parties should in the future make appropriate enquiries of the expert. Nevertheless, bearing in mind the special nature of this case, the judge decided that the claimant would have an understandable sense of grievance if she was not allowed to call a further expert and should, therefore, be given leave to do so.
This case establishes that a good reason will be needed for a court to allow an expert to be replaced in circumstances where an expert has changed his mind following an experts' meeting. To prevent or minimise the potential for such problems arising, an agreed detailed agenda of any item for discussion at an experts' meeting should be prepared in advance and circulated to all.
David Gray
Partner and Head of UK Litigation and Arbitration Group
e david.gray@dlapiper.com
Ioannis Alexopoulos
Partner
e ioannis.alexopoulos@dlapiper.com
RICS wishes to thank DLA Piper for contributing this article. All rights reserved to DLA Piper, November 2006.
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