The controversial practice of expert shopping could soon be history. Mark James explains
Expert shopping has long been recognised as a vice of the adversarial system. Unlike many continental systems—where court appointed experts are the norm—in England and Wales a party is free to select its own experts and discard those that do not support its case.
There is an obvious benefit to justice in forcing an expert shopper to disclose discarded reports. It enables the court to see the full picture and makes it more likely that justice is done. Discouraging expert shopping reduces the cost of litigation. Partisan experts writing biased reports to replace discarded reports are more easily detected, and objectivity in report writing is encouraged. Once disclosed, the discarded report may be relied upon by the other side as evidence at trial (see CPR 35.11).
Privilege
The desire to eliminate expert shopping and to do justice may, and usually will, bring the court into conflict with the doctrine of legal professional privilege. There is no doubt that, prior to disclosure to
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