Expert shopping: They're not just for Christmas

This time of year traditionally drives us towards the hunt for presents for the holiday season. However, if you have a need to purchase an expert do remember that they are difficult to take back if you are not happy with the product. If you get the wrong expert an escape strategy is not easy.

But what do we mean by “the wrong expert”? It is commonplace in construction and engineering disputes to both assess and support allegations regarding the quality of professional input into design or alternatively where there are allegations of defects, usually in the form of an independent report to provide a supporting position in a dispute resolution process particularly in the courts. Indeed, if such an expert finds the arguments unsupportable on initial review, subject to rigorous testing of that view, any case seems doomed to fail. 

The appointment of an expert requires careful thought including consideration of the precise expertise required, the potential task timescale, the qualifications of the expert, and the nature and content of the brief

Where it becomes a potential issue that a party has been shopping for a favourable expert report the other party will attack to seek disclosure of previous reports and instructions to such experts in the hope and suspicion that it will reveal a weaker case than the one being advanced. 

Many of these issues came to the fore in the recent case of BMG (Mansfield) Limited and another vs Galliford Try and another [2013] EWHC 3183(TCC) which concerned fire protection issues after a shopping centre fire in 2004. BMG’s expert was appointed in 2004 however, the claim was not issued until 2010 which was followed by an unsuccessful mediation in 2012. After this, the expert indicated that he did not want to continue acting, because he wished to retire. BMG applied to court to appoint a new expert and Galliford alleged expert shopping.  

The court accepted that it could order disclosures of BMG’s expert’s previous reports even if obtained before proceedings had been issued and such disclosure was not limited to BMG’s expert’s final report. However, on the facts it was accepted that BMG’s expert had decided to retire when it became apparent that the matter was heading for trial sometime in the future and this was not a strong case of “expert shopping”.

 It is clear that the selection and appointment of an expert requires careful thought including consideration of the precise expertise required, the potential task timescale, the qualifications of the expert, and the nature and content of the brief.

 If you are shopping for an expert for the holiday season I wish you well, but remember choose carefully as you will be unlikely to take your first choice of expert back to the shop.

Laurence Cobb is head of construction at law firm Taylor Wessing