A contractor accused of causing a fire at a hotel has been ordered to reveal information gathered by its expert at a pre-action stage, as a condition of being allowed to switch to an alternative expert. There were suspicions that the contractor could be ‘expert shopping’ for a more favourable opinion.
Eco Top Heat & Power was accused of causing a fire at Cottesmore Hotel, Golf and Country Club in 2018. The owner of the hotel, Matthew Rogerson, said that the construction workers were ‘smoking profusely’ and alleged a discarded cigarette caused the blaze which destroyed much of the hotel. He is claiming nearly £8 million in damages over the fire.
Before legal proceedings started, Eco appointed a forensic fire expert, Dr Nagalingam, to establish the cause of the fire. He undertook two site visits and interviewed witnesses.
However, when legal proceedings started, Eco’s team said that it wanted to call Ms Emma Wilson as its fire expert. Rogerson’s team did not oppose the change of expert but asked the court to order Eco to reveal the information gathered by Dr Nagalingam as the ‘price’ for permitting the change. The defendant refused, claiming the information was covered by legal privilege. It argued that Ms Wilson had greater experience in cigarette induced fires than Dr Nagalingam.
Given the defendant team’s failure to provide candid responses to certain questions raised, the judge was prepared to infer that a case of ‘expert shopping’ had happened, and that Dr Nagalingam had agreed with Mr Rogerson’s experts that the most likely cause of the fire was a cigarette. He ordered disclosure of an attendance note taken where Dr Nagalingam had expressed views on causation.
James Burgoyne of Brunel Professions said: “Professional firms involved in disputes must take care in seeking expert opinion in the early stages of a case, and especially if there is the possibility that they will want a different expert if the claimant’s case evolves. There will always be a suspicion of ‘expert shopping’ in the event of changes and therefore the strong possibility of a court order for disclosure of otherwise privileged documents from the first expert.”