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Is expert shopping like parties manipulating the adjudicator appointment process?

Over the years, I’ve discussed many aspects of expert evidence, but I’m not sure I’ve covered expert shopping before. It was an issue that was before the TCC in Birmingham recently in Coyne v Morgan and another (t/a Hillfield Home Improvement) and it made me wonder if it is very different from when parties seek to manipulate the adjudicator nomination process.

Expert shopping

Put simply, expert shopping is when one party casts around for different experts’ views, seeking one that will best support its case. It is something that courts frown upon. They seek to prevent it by ensuring that, if a party gets as far as appointing one expert and then wants to change to another expert, it is a condition of the change that the first expert’s report is disclosed.

In Hajigeorgiou v Vasiliou, Dyson LJ stated (in his customary direct way), that:

“Expert shopping is undesirable and, wherever possible, the court will use its powers to prevent it.”

However, just because a party wants to change expert doesn’t always mean that the expert has written a report that is unwelcome and unsupportive of that parties case. Sometimes there may be other factors at play.

BMG (Mansfield) Ltd v Galliford Try Construction Ltd

For example, in BMG (Mansfield) Ltd and another v Galliford Try Construction Ltd, it was the expert, Mr Streeter, who wanted to retire. I don’t think you can blame him. He had been appointed as an architectural expert in November 2004 (when he was 61 or 62) and had written his initial report in 2005. By the time he was involved in a mediation in 2012, he was approximately 70 years old. The case looked like it was finally proceeding to trial, which was still some time off.

The court didn’t think this was a case of expert shopping, and was sympathetic to the position the expert found himself in. As such, it ordered disclosure of reports and other documents from the expert where the expert had expressed his opinion.

Coyne v Morgan

In Coyne v Morgan, the defendants’ expert structural engineer, Mr Wells, withdrew his services after deciding that the defendants lacked confidence in him. He also said he no longer had time to deal with the matter, as he assumed he was no longer required and had taken on other work. As the expert had already written a draft report, the issue for the court was whether that report and other documents (including attendance notes) should be disclosed.

The court indicated that there had to be a strong suggestion of expert shopping, if it was going to order disclosure of more than just an expert’s report. This was not such a case, as the defendants had wanted the expert to continue as their expert and it was the expert who felt he could no longer act. Therefore, only the expert’s report was ordered to be disclosed.

Relevance to manipulating the adjudicator appointment process?

The reference to expert shopping in Coyne v Morgan made me think about the manipulation of the adjudicator appointment process, “adjudicator shopping” by another name.

Eurcom v Siemens

By now I’m sure everyone is familiar with Ramsey J’s judgment in Eurocom Ltd v Siemens plc but, just in case you missed it (and where have you been?), just a quick recap:

  • In August 2012, I was appointed as the adjudicator and I decided that Eurocom should pay Siemens some £35,000.
  • The following year, in November 2013, Eurocom started another adjudication and in its application form to RICS, 13 individuals were listed who Eurocom’s representative said should not be appointed (I was included on the list).
  • RICS appointed another adjudicator (the second adjudicator).
  • Ultimately, after the exchange of many submissions and an extension of time, the second adjudicator awarded Eurocom some £1.6 million.

In the enforcement proceedings that (perhaps inevitably) followed, Siemens argued (among other things) that the second adjudicator’s appointment was invalid because of the information that Eurocom’s representative provided to RICS in the application form. Ramsey J agreed, finding that there was a “strong prima facie” case that Eurocom’s representative had made a fraudulent misrepresentation when he applied to RICS for the nomination of an adjudicator. This invalidated the second adjudicator’s appointment, which meant he lacked jurisdiction to reach a decision.

Parties do have a choice

Eurocom v Siemens may be an extreme example of adjudicator shopping, but it also demonstrates that parties do have a choice about who should act as an adjudicator.

Quite often the parties will have named an individual (or individuals) in their contract in the contract data (under NEC3) or in the contract particulars (under JCT). Alternatively, the parties may have been content to simply identify a particular ANB or, in the case of JCT standard form contracts, left the section blank, whereby they get a choice of ANB (just like you do under the Scheme for Construction Contracts 1998).

Whichever route the parties take, they are making choices along the way. Similarly, choices may be made once there is a dispute. Eurocom v Siemens may tell us that you cannot apply a blanket veto to several individuals, but it does not stop those with genuine concerns from naming someone in the application form. Similarly, if there is a known conflict of interest, that can still be raised. However, what parties cannot do is give the ANB the misleading impression that certain adjudicators have a conflict of interest when they do not.

MCMS Ltd Matt Molloy

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