Related Sector: Expert Witness
The recent County Court (Leeds) case of Mr Sajid Hussain v QIC Europe Limited highlights the circumstances in which the judge is likely to allow a party to substitute their expert witness (and therefore the original expert to withdraw from a case). Whilst the judgment given by District Judge Bond has no binding authority, in arriving at his decision he consulted the relevant case law on this subject, which serves as a useful reminder for expert witnesses and their instructing solicitors.
The case relates to a claim for damages of around £59,000 following the allegedly defective installation of a cavity wall insulation in the Claimant’s home by Eco Green World Limited in April 2017, which went into creditors’ voluntary liquidation in August 2018. The Defendant was the insurer under a public liability insurance policy taken out by Eco Green World Limited.
Prior to issuing proceedings, the Claimant obtained a preliminary report from his expert witness, Mr Robert Muir, which was used as the basis for the particulars of claim. Proceedings were then issued on 20 October 2020 and in the course of the proceedings, on 20 July 2021 the Claimant returned his directions questionnaire nominating Mr Muir as his expert.
However, on 22 September 2021, the Claimant’s solicitors received communication from Mr Muir’s agency that due to him securing a permanent position in Saudi Arabia, he was no longer able to provide services in the UK. This was followed by the filing of two witness statements by Mr Muir at the request of the Claimant’s solicitors, providing his evidence for being unable to fulfil his obligations. This formed the basis of the Claimant’s application to substitute his expert, with a new expert.
The hearing of this application took place on 23 March 2022.
As part of his judgment, District Judge Bond cited key principles from several key cases.
- In Edwards-Tubb v JD Wetherspoon PLC ,which is the leading case on expert substitution, Hughes LJ stated: ‘…it will often, perhaps normally, be proper to allow a party the option, at his own expense, of seeking a second opinion. It would not usually be right to simply to deny him permission to rely on expert B and thus force him to rely on expert A, in whom he has, for whatever reason, lost confidence.’
- In Adams v Allen & Overy , Foskett J discussed the principles to be applied in some detail, stating that the expert in question’s unwillingness to continue ‘constitutes a good reason why [the party] should not want to call him. His reasons are a matter for him, and I am not convinced that he has to justify himself’ He then stressed that ‘if…there was any evidence that [the expert’s] apparent unwillingness to continue was simply a mask for some ulterior reason on the part of the Claimant’s team to be rid of him, the position might be different’.
- The court’s view towards expert shopping was summarised in Murray v Devenish , where Gross LH stated that ‘ordinarily a party will not be deprived of his or her expert of choice and will not be forced to rely on an expert in whom that party has lost confidence, but expert shopping is to be and will be discouraged. In deciding what constitutes expert shopping, the court will have regard to firstly, the state of the litigation at the time, secondly the reason given for the proposed change, third to the interests of justice and fourthly, to the candour with which the application is approached.’
District Judge Bond ruled in favour of the Claimant, granting him permission to substitute Mr Muir with a new expert, Mr Edward Anderson-Bickley.
Let’s explore the reasons why he reached this conclusion:
- Whilst Mr Muir’s evidence on his inability to act was thoroughly unconvincing - providing ‘a number of unconvincing and unsupported reasons why he [could not] fulfil his obligations’, he went to some lengths to justify his contention so much so that it was clear that he did not want to act. There was some speculation as to what those reasons might be, but ‘whatever the truth of the matter…the bottom line is that on the evidence…Mr Muir is not a willing witness in this case’, which led District Judge Bond to be ‘entirely satisfied’ that he ‘can and should deal with this case as a case of an unwilling witness.’
- There had been no co-operation in the selection of experts and there was no evidence of any engagement by the Defendant with Mr Muir or his expressed opinions in the pre-action phase or since.
- Although the court has the power to summon an unwilling expert to attend court and give evidence at trial, even assuming that it is permitted under local law, there would have been logistically difficulties of bringing Mr Muir before the court against his will (remote or in person) when he is based in Saudi Arabia.
- The ultimate objective in all cases is to ensure that the claim can be tried justly, which means doing justice to both parties. District Judge Bond concluded that the practical effect of an order refusing permission would at best leave the Claimant with an unwilling expert, and at worst with no expert at all, in a case where expert evidence is central. However, the practical effect on the Defendant of granting in favour of the application would be limited to delay and money, the former of which was minimal, as the proceedings were at an early stage and the latter of which could be compensated for in costs. ‘The additional cost and inconvenience to the Defendant cannot outweigh the Claimant’s legitimate interest in instructing a new expert’, and to not grant this request would mean that the Claimant would not be given a fair trial.
This case, and indeed the previous cases cited highlight the court’s general view with regards to expert witnesses withdrawing from and being substituted in cases. While a party does not have an unfettered right to call any expert of their choosing in circumstances where they have an expert already instructed, the court has the power to allow a substitution of an expert, if, for example, it is clear on the facts that the original expert is unwilling to act and if denying this request would undermine a party’s right to a fair trial.
Experts who find themselves in this situation, for whatever reason, would be advised to inform their instructing solicitors and the court, immediately of their unwillingness to give evidence in an ongoing matter and if possible, provide evidence to back up their statement.
Author: Meera Shah
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