In a case decided last year, Burke v Imperial College Healthcare NHS Trust EWHC 3719, the English High Court confirmed that when a party in a case seeks to change experts, it must disclose the first expert’s report or draft report where there is no good explanation for the change in witness. The reasoning for the disclosure of the first expert’s reports is to avoid expert shopping. 

England – Duty to Disclose Reports of the Previous Expert Witness

In this case the claimant was seeking damages for alleged medical negligence. During a case management conference, the Master gave the defendant permission to adduce expert evidence from a second expert.  That expert dealt with the same issues addressed by a previous expert. No condition was imposed by the Master that the draft report be disclosed as the Master was satisfied there was no “expert shopping”. 

The claimant appealed this decision to the High Court.  It transpired that the Master had been informed that the need for the change in experts was due to the first expert having insufficient experience and limited involvement in the case. However, the expert had been involved in the case for two years. The appeal was successful, as the High Court found that there was “more than a hint” of expert shopping in relation to the evidence presented in the appeal, and the disclosure of the first expert’s report was ordered. 

Ireland – Duty to Disclose all Reports and Statements of Expert Witnesses “intended to be called”

In Ireland, Order 39 Rule 46 of the Rules of the Superior Courts states that parties to a personal injury action will exchange copies of all expert reports to be relied on in a case. In Power v Tesco Ireland Ltd IEHC 390 Barrett J, interpreting Order 39 Rule 46, held that “only expert reports prepared by an expert whom it is intended to call to give evidence need be disclosed; if, at any time prior to disclosure, an expert ceases to be an expert whom it is intended to call to give evidence, her or his expert report need not be disclosed.”  In Ireland if an expert is not intended to be called to give evidence in court his/her report does not need to be disclosed.

The Rules of the Superior Courts do however require that both parties disclose all reports and statements which contain the “substance of the evidence to be adduced” by experts they intend to call as witnesses. In Payne v Shovlin IESC 5 the Irish Supreme Court ruled this to mean that all reports, including preliminary expert reports not adduced at trial, must be disclosed.

Different Disclosure Requirements

The English decision in Re Burke highlights one of differences between the personal injury disclosure requirements in Ireland and England. Here if the expert is not giving evidence, disclosure of their report is not required. As matters stand in England it may be ordered in certain circumstances, particularly where there is a suggestion of expert shopping.  It should also be borne in mind what can occur with a statement when it is adduced in evidence in a separate trial, as discussed here.

Contributed by Simona Mulligan