When instructing a new expert, is disclosure of an earlier report inevitable? Dr Chris Pamplin reports
- Does the report of an expert who is no longer able to act for a party have to be disclosed as a necessary condition of the party being able to appoint a new expert?
It is not uncommon for a party in possession of an unfavourable expert report to want to ‘shop around’ for an expert whose opinion is more supportive of its case. Expert shopping is, of course, a practice that has been frowned upon by the courts. Indeed a body of case law and procedural practice has developed that aims to deter, and ideally prevent, such behaviour.
As a consequence, when a party makes an application for permission to change expert, the court, if granting the application, will usually impose a condition that the report of the outgoing expert should be disclosed. So common has this become that many presume that the imposition of such a condition is automatic.
A question of limitation
However, in Daniel Alfredo Condori Vilca & Others v Xstrata Limited, Compania Minera
