The University of Manchester v John McAslan & Partners Limited & Anor. [2022] EWHC 2750 (TCC)

“Before turning to the next paragraph of Judge Langan’s judgment, it is convenient to cite the most directly relevant passages from Sachs LJ’s leading judgment in Lane v Willis [1972] 1 WLR 326. There are three. At p 333 A-C: “The principles upon which a court should, in aid of obtaining a medical examination of one of the parties to an action, act when deciding whether or not to take the somewhat strong course of staying the action is a medical examination is not afforded, are by now clear. An order for a medical examination of any party to an action has been well said to be an ‘invasion of personal liberty’. Accordingly, it should only be granted when it is reasonable in the interests of justice so to order. When the refusal of a medical examination is alleged to be unreasonable, the onus lies on the party who says it is unreasonable and who applies for the order to show, upon the particular facts of the case, that he is unable properly to prepare his claim (or defence) without that examination. The onus lies firmly on the applicant, as Mr Turner very rightly conceded.” “At p 333 H: “This is a serious neurosis case and it is right to emphasise that in such a case each successive examination of the unfortunate plaintiff must be apt to disturb him and to aggravate the very thing for which he is claiming compensation. To that extent a plaintiff in his position requires – as was given to him by his solicitors – every effort made to protect him against unnecessary examinations.” “At page 334: “it has become plain that in future cases of this particular type (if these should ever recur) such medical evidence should be produced: no room should be left for a plaintiff to wonder whether the application is really due to the reports of a defendant’s medical expert being unfavourable to the plaintiff.” “The principles upon which a court should, in aid of obtaining a medical examination of one of the parties to an action, act when deciding whether or not to take the somewhat strong course of staying the action is a medical examination is not afforded, are by now clear. An order for a medical examination of any party to an action has been well said to be an ‘invasion of personal liberty’. Accordingly, it should only be granted when it is reasonable in the interests of justice so to order. When the refusal of a medical examination is alleged to be unreasonable, the onus lies on the party who says it is unreasonable and who applies for the order to show, upon the particular facts of the case, that he is unable properly to prepare his claim (or defence) without that examination. The onus lies firmly on the applicant, as Mr Turner very rightly conceded.” “This is a serious neurosis case and it is right to emphasise that in such a case each successive examination of the unfortunate plaintiff must be apt to disturb him and to aggravate the very thing for which he is claiming compensation. To that extent a plaintiff in his position requires – as was given to him by his solicitors – every effort made to protect him against unnecessary examinations.” “it has become plain that in future cases of this particular type (if these should ever recur) such medical evidence should be produced: no room should be left for a plaintiff to wonder whether the application is really due to the reports of a defendant’s medical expert being unfavourable to the plaintiff.”

“20. …. What I confess to having had some difficulty in understanding is why the defendants should not be required to disclose Dr Goodhead’s report. There are two aspects of this. Different considerations arise depending on whether disclosure is said to be required (a) before the decision is taken either to allow or to refuse the application to change experts; or (b) as a condition of granting such an application. It appears that the argument in this case has hitherto focused exclusively on the first stage …. “ …. “23. The burden of the defendants’ argument in this regard is that, whilst it is one thing to assert, as clearly in general terms they were asserting, that their expert’s report, essentially supportive of their case though it was, was in many respects unsatisfactorily set out and reasoned; it is quite another to be forced to make that argument by specific reference to the details of the report, every point thereafter becoming directly available against them if ultimately they are forced to rely upon his evidence. Put on that basis, and that must necessarily have been the basis upon which the point was understood by both judges below, I, for my part, am likewise disposed to accept it. “24. Very different considerations, however, seem to me to arise once in principle it has been decided to make the order allowing a new expert to be instructed. At this point I can see no reason for continuing to withhold disclosure of the original report which is now to be discarded, and every possible reason why such disclosure should be made. In Lane v Willis [1972] 1 WLR 326 one notes, the Court of Appeal was told, on indicating that they proposed to allow the defendants to instruct a further expert, that the defendants would thereupon disclose their existing evidence. Roskill LJ, at p 355, described that as a very proper undertaking by counsel for the defendants: “that if this court makes the order which he seeks, at any rate in some form, the defendant’s solicitors will, as soon as they get [the new report], send to the plaintiff’s solicitors a copy not only of that report but of the various reports which Dr Carroll has already made as a result of his several examinations of the plaintiff. If the defendant does not wish to call Dr Carroll at the trial, it would then be open to the plaintiff to call him if he so desired.” “25. The disclosure of the original report, as a condition of being allowed to instruct a fresh expert, would also meet the concern expressed by Sachs LJ in the third passage of his judgment at p 334 cited above in para 16: “no room should be left for a plaintiff to wonder whether the application is really due to the reports of a defendant’s medical expert being favourable to the plaintiff.” “26. I do not say that there could never be a case where it would be appropriate to allow a defendant to instruct a fresh expert without being required at any stage to disclose an earlier expert’s report. For my part, however, I find it difficult to imagine any circumstances in which that would be properly permissible and certainly, to my mind, no such circumstances exist here.” “that if this court makes the order which he seeks, at any rate in some form, the defendant’s solicitors will, as soon as they get [the new report], send to the plaintiff’s solicitors a copy not only of that report but of the various reports which Dr Carroll has already made as a result of his several examinations of the plaintiff. If the defendant does not wish to call Dr Carroll at the trial, it would then be open to the plaintiff to call him if he so desired.”

“31. A claimant who brings proceedings for personal injury, whether physical or psychiatric, must accept that he is likely to have to submit to a medical examination by an expert instructed by the defendant. A claimant can properly object, however, to being subjected to a second examination without good reason. “32. In this case the reason advanced for subjecting Mr Beck to a second examination is that the first expert instructed by the defendants has proved unsatisfactory. In my judgment a claimant can reasonably object to being examined again if this is, or may be, because the conclusions reached by the first expert have proved more favourable to him than the defendants had anticipated. “33. I do not consider that the court should order a second examination or stay proceedings pending a second examination by a new expert if this is a possibility. So to order would be to permit the possibility of expert shopping which is undesirable. In this case, on the evidence of the defendants’ solicitor, it is not said that Mr Goodhead’s conclusions are unfavourable to the defendants, but that the form or manner in which those conclusions have been expressed in the report that he has prepared are so unsatisfactory as to have resulted in a loss of confidence in him as an expert. “34. I do not consider that a claimant should be required to take such an assertion on trust. Equally, I can accept that it may not be reasonable, and has been found not to be reasonable in this case, to expect defendants to advance specific criticisms of an expert’s report at the time when the possibility remains that the defendants will be driven to rely upon that expert because the application to replace him has been refused. “35. The answer in this case, and in any case where a similar situation arises, is that proposed by Simon Brown LJ that the permission to instruct a new expert should be on terms that the report of the previous expert be disclosed. Such a course should both prevent the practice of expert shopping, and provide a claimant in the position of Mr Beck with the reassurance that the process of the court is not being abused. In this way justice will be seen to be done.”

“29. The principle established in Beck v Ministry of Defence … is important. It is an example of the way in which the court will control the conduct of litigation in general, and the giving of expert evidence in particular. Expert shopping is undesirable and, wherever possible, the court will use its powers to prevent it. It needs to be emphasised that, if a party needs the permission of the court to rely on expert witness B in place of expert witness A, the court has the power to give permission on condition that A’s report is disclosed to the other party or parties, and that such a condition will usually be imposed. In imposing such a condition, the court is not abrogating or emasculating legal professional privilege; it is merely saying that, if a party seeks the court’s permission to rely on a substitute expert, it will be required to waive privilege in the first expert’s report as a condition of being permitted to do so. “30. A question that was not considered in Beck’scase is whether the condition of disclosure should relate only to the first expert’s final report, or whether it should relate to his or her earlier draft reports. In our view, it should not only apply to the first expert’s “final” report, if by that is meant the report signed by the first expert as his or her only report for disclosure. It should apply at least to the first expert’s report(s) containing the substance of his or her opinion.”

“After the claimant was injured at work, his solicitors followed the procedure under the pre-action protocol for personal injury claims in the Civil Procedure Rules by giving notice in a letter before action to the defendant of the names of three orthopaedic surgeons they might instruct so that any objection might be made. With no objection having been taken, the claimant instructed one of the nominated experts who examined the claimant and made a report. The defendant admitted liability for the claimant’s injury, and only the extent of the injury and quantum remained in issue. A few months later the claimant instituted proceedings with particulars of claim supported by the medical report of a different and unnominated orthopaedic surgeon. That report mentioned that the claimant had seen an orthopaedic surgeon previously.”

“25. When giving permission for this second appeal Sedley LJ acutely raised the question whether there exists a difference in principle between privileged pre-issued reports and privileged post-issue reports. The claimant’s case before us depended upon such a distinction, but that was because Mr Grice felt constrained by the Beck and Vasilou cases to accept that the power to impose a condition exists where a party is asking the court to vary an existing order identifying expert A, so that expert B can be substituted. However, even if Mr Grice is right about that, the question still remains: in what circumstances should the power to attach a condition of disclosure be exercised, or should it be the normal order? It seems to me that in order to dispose of this appeal on a principled basis, and to be of some assistance to courts in the very large number of personal injury cases which come before them, we must address the question asked by Sedley LJ. “26. The first thing to note is that CPR Pt 35 is concerned with experts who are instructed “for the purpose of proceedings”

“30. Authority apart, it seems to me that the imposition of a condition is as justified in pre-issue as in post-issue cases. I certainly accept that there may be perfectly good reasons for a party to wish to instruct a second expert. Those reasons may not always be that the report of the first expert is disappointingly favourable to the other side, and even when that is the reason the first expert is not necessarily right. That means that 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 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. But that is quite different from the question whether expert A’s contribution should be denied to the other party by the fact of who instructed him. An expert who has prepared a report for court is different from another witness. The expert’s prime duty is unequivocally to the court. His report should say exactly the same whoever instructed him. Whatever the reason for subsequent disenchantment with expert A may be, once a party has embarked on the pre-action protocol procedure of co-operation in the selection of experts, there seems to me to be no justification for not disclosing a report obtained from an expert who has been put forward by that party as suitable for the case, has been accepted by the other party as suitable, and has reported. Thus although the instruction of a medical expert is a matter almost of course in most personal injury cases, it is appropriate for the court to exercise the control afforded by CPR r 35.4 in order to maximise the information available to the court and to discourage expert shopping. Whilst at the time of the Access to Justice report this development may not have been foreseen, the those of litigation which it established is promoted rather than prevented by the exercise of this power. “31. For these reasons I would hold that the power to impose a condition of disclosure of an earlier expert report is available where the change of expert occurs pre-issue as it is when it occurs post-issue. It is of course a matter of discretion, but I would hold that it is a power which should usually be exercised where the parties have embarked upon the protocol and thus engaged with each other in the process of the claim. Where a party has elected to take advice pre-protocol, at his own expense, I do not think the same justification exists for hedging his privilege, at least in the absence of some unusual factor….. An expert consulted at that time and not instructed to write a report for the court is in a different position, and outside CPR r 35.2.”

“28. I am prepared to accept that the conditions that the court can impose on a party applying for permission to call an expert are not limited to an expert’s “final” report (meaning the report prepared for disclosure pursuant to CPR r.35), but may extend to other reports containing the substance of the expert’s opinion: see Vasiliou at [29]-[31]. “29. What I regard as more problematic is disclosure of documents such as solicitors’ attendance notes of telephone calls with the expert which record (or purport to record) the substance of his opinions. There are at least two difficulties in the way of disclosure of such documents, which are of course privileged. The first is that they will probably not record the expert’s actual words, but rather the substance of what the solicitor understood the expert to say. The two may not be the same. The second is that the notes may well contain material that is not expert opinion: in this case, for example, Mr. Streeter’s views on the other parties’ experts, the thinking of the Claimants about the future conduct of the litigation, what Mr Streeter thinks of the Claimant’s own experts, and so on. “30. While it may be said that the second difficulty can be overcome by appropriate redaction, as so often happens when confidential or even privileged documents have to be disclosed for one reason or another, this will not prevent the problem which always occurs with such disclosure; namely that the disclosed passages very often have to be read in the context of the redacted passages in order for the meaning of the disclosed passages to be properly understood. “31. Another problem which arises out of the first difficulty is that BLM may wish to check with Mr Streeter that what they have reported him as saying in a particular attendance note is correct. What is to be done if Mr Streeter does not wish to co-operate or does not agree that the note correctly records what he told the solicitors? It may be that he would have to make a witness statement and, if necessary, give evidence. It is hard to see how the costs of this exercise would be proportionate, even in the context of a case as substantial as this one. “32. These considerations lead me to conclude that there would have to be a very strong case to justify a condition that such solicitors’ attendance notes should be disclosed in addition to any reports or draft reports by the expert.”

“38. In these circumstances this is not a case where I am prepared to order disclosure of all attendance notes by BLM in which Mr Streeter’s opinions in issue have been recorded. To make such an order would result in a significant invasion of the Claimants’ privilege which is not justified in the light of the evidence about the circumstances and timing of Mr Streeter’s withdrawal from the case. It would add considerably to the costs of this already expensive litigation with no certainty that it would provide the Defendants with any material that might significantly assist their case. I appreciate that the policy of imposing a condition requiring disclosure of a previous expert’s reports is to deter the practice of “expert shopping”, but it seems to me that there has to have been “expert shopping” or at least a very strong appearance of it, before disclosure of the type sought on this application should be ordered. I therefore decline to make an order of the type that the Defendants seek. “39. However, I will order the Claimants to disclose any other report or document provided to BLM by Mr Streeter in which he expressed opinions or indicated the substance of such opinions on the matters in issue in these proceedings. I understand that there may be no such report or documents, but I do not see why the Defendants should not have the comfort of such an order in case any such documents should hereafter come to light.”

“[31] From those authorities I derive the following principles: (1) The court has a wide and general power to exercise its discretion whether to impose terms when granting permission to a party to adduce expert opinion evidence: that is consistent with both the general way in which CPR 35.4(1) is expressed, and the wide and general nature of the court’s case management powers, in particular those set out in CPR 3.1(2)(m). (2) In exercising that power or discretion, the court may give permission for a party to rely on a second replacement expert, but such power or discretion is usually exercised on condition that the report of the first expert is disclosed: see Dyson LJ at paras [27] and [29] of his judgment in Vasiliou. (3) Once the parties have engaged in a relevant pre-action protocol process, and an expert has prepared a report in the context of such process, that expert then owes a duty to the court irrespective of his instruction by one of the parties, and accordingly there is no justification for not disclosing such a report: see Hughes LJ at para [30] of his judgment in Edwards-Tubb. (4) While the court discourages the practice of “expert shopping”, the court’s power to exercise its discretion whether to impose terms when giving permission to a party to adduce expert opinion arises irrespective of the occurrence of any “expert shopping”

“25. Without in any way derogating from the statements of the higher courts to which I have referred, it seems to me that they speak with one voice on the central issue of principle that affects the present application. The first question for the court of first instance when it is faced with an application such as the present is whether the circumstances give rise to any power to impose a condition. In answering this first question, Beck and Vasiliou stand as useful examples of cases falling on either side of the line. In Beck the Defendant needed the Court's permission for a second examination. That gave the Court the power to exercise its discretionary case-management powers, which are always to be exercised in accordance with the overriding objective. On the other side of the line, in Vasiliou the previous order of the Court had not specified a particular expert and the Defendant could have complied with all existing orders on time even with its new expert. When the Defendant raised the issue with the Claimant, there was nothing to give rise to further powers to control the conduct of the parties. No question of imposing a condition therefore arose. “26. The second question, which arises if the court has determined that it has case-management powers, is how they should be exercised on the facts of the particular case. I have already said that they should always be exercised in accordance with the overriding objective. The cases to which I have referred above do not establish some different principle. What they establish is that the court will always have regard to the possibility of undesirable expert shopping and the instinctive desire for the court to have full information (with the associated desire for the other party to be assured that the court's process is not being abused). The Court of Appeal has consistently said (albeit in slightly differing terms) that the object of imposing a condition that reports of previous experts should be disclosed is to prevent expert shopping and to ensure that full information is available. “27. I do not exclude the possibility that there might be cases where the two limbs of the rationale identified by the Court of Appeal might be absent and yet there might be some other reason, specific to the facts of that case, which require or justify the imposition of the condition of disclosure. But I do not accept that it is established either on principle or by authority that there is a rule of practice or procedure requiring that the condition be imposed if the two limbs of the rationale are absent and there is no other good reason to impose it. Furthermore, while the usual course where the two limbs of the rationale are present will be that the condition will be imposed, it is not inevitable. In my judgment the court should in all cases apply its mind to what course will best meet any concerns that may exist and best advance the overriding objective. This requires the court to consider in any given case what weight, if any, is to be given to those factors that might support the imposition of conditions as well as to those which tend in the opposite direction.”

“The findings and conclusions of the investigations indicate that remedial works are required from the SCAN Building. The failure of bricks represents not only an immediate health and safety risk, but will also impact on the long term durability and performance of the brickwork. “Remedial options have been considered to remediate both the damage and the underlying causes of the failures. Simply repairing the spalled bricks and areas of cracking would not return the brickwork to a properly designed and constructed state. The remedial works need to be extensive (Option 4 in Section 5) and it is recommended that complete façade replacement is undertaken in order to provide a building that is free of the defect and aesthetically acceptable.”

“The full extent of the work required will not become clear until the remedial works have commenced. It should be anticipated that the remedial work will become more extensive than here specified.”

“As you know the parties are presently considering Lists of Issues for Disclosure in relation to the above proceedings as well as preparing more generally for the CCMC in October. As part of the foregoing, LOR has considered the extent to which the University should make disclosure of documents arising out of the University instructing experts who it no longer instructs. “Three experts fall into this category: 1. The University instructed Dr Stephen Garvin of the BRE to investigate and report on the brickwork façade issues at University Place in April 2013. A report from Dr Garvin was shared by the University with LOR (among others) in December 2013. LOR were also provided with a response by Dr Garvin to comments made on his report by LOR and others in April 2014. This makes clear that Dr Garvin had been and continued to be instructed at a time when a process of engagement between the experts for the purposes of litigation had occurred. When the University subsequently wrote to LOR in November 2014 advising that it had “now formally appointed Dr Ron Casson and Ms Philippa Gavey, of Bickerdike Allen Partners, and Alan Conisbee and Associates trading as Conisbee, as the University’s experts”, no explanation was given as to why the University did not wish to continue with Dr Garvin as its expert (despite our letter to Eversheds dated 19 January 2016). However, the University continues to rely upon parts of the work of Dr Garvin, which the University has selected (to support its case on the alleged defects in the brickwork and how they should be remedied). For example, the Cross-Referencing Document referred to at paragraphs 63-68 of the Judgment dated 25 November 2020 stated: “All defects pleaded in the PoC have been noted during inspections (including those undertaken by BRE which, as noted in the introduction to App 1 are not collated in App 1, and by UoM’s appointed experts)” (see also the reference to “photographs in the BRE report” on the second page of the Cross-Referencing Document). We understand the reference to “BRE” to be to Dr Garvin. 2. Reports from Dr Casson and Mr Conisbee were provided to LOR in February 2016 after the University’s Pre-Action Protocol Letter of Claim. Since that time, Dr Casson has not been involved in the claim on behalf of the University. Nevertheless, the University continues to seek to rely upon parts of the work of Dr Casson, which the University has selected (to support its case on the alleged defects in the brickwork and how they should be remedied). See the introduction to Appendix 1 to the Amended Particulars of Claim dated 9 March 2021, which refers to Dr Casson’s report dated 24 February 2016. It is also understood that Appendix 4 thereto was produced to Dr Casson or under his supervision. We infer expert shopping in respect of the University ceasing to instruct Dr Garvin and Dr Casson given the absence of any explanation for the same. LOR can only reasonably infer that their opinions were developing or had developed in such a way that the University considered that their evidence would be adverse to its case. In addition, in respect of both experts (and Mr Conisbee – see below), the inference of expert shopping is greatly reinforced by the cumulative effect of the University having ceased to instruct three different experts. 3. Mr Conisbee has been replaced by his colleague, Mr Bob Stagg. As we have noted previously, in essence, Mr Conisbee had advocated a repair rather than replacement scheme in sections 10-11 of his report dated 10 October 2019 (see LOR’s Defence at paragraph 192.2). Mr Stagg now advocates a replacement scheme. Any suggestion that the University could reasonably proceed to replace the entire brickwork façade of Blocks 1-3 based on Mr Conisbee’s opinion at that time would have been hopeless. His evidence was very likely to be fatal to the quantum case advanced by the University and would have required the University to alter the claimed remedial works and costs. In contrast, Mr Stagg’s current position appears to be broadly supportive of the University’s pleaded case. We note that Mr Conisbee is said to have been unable to continue having retired because of illness. However, we note that Mr Conisbee is still today named on his firm’s website as a consultant and appears to be held out as available for work. In this regard, Mr Stagg (who, at 69 years old, is only 3 years younger than Mr Conisbee, and also past retirement age) is held out in the same way (as a consultant) on the same webpage. We note that both are stated on the website as having retired as directors. We understand that Mr Conisbee retired as a director on 7 July 2017 but continued to work on this matter for another 2½ years. Given the foregoing, we infer expert shopping. In addition, it is reasonable to infer that ever since 10 October 2019 (at the very latest) the University had been seeking to change to an expert who would endorse a replacement scheme and that the University would have changed expert whether or not Mr Conisbee retired. For the avoidance of doubt, in light of paragraphs 3.1.1, 4.1.1 and 5.1.1 of Mr Stagg’s draft report of 22 May 2020, it is not tenable for the University to suggest that Mr Stagg’s opinion differs from that of Mr Conisbee as a result of further investigations which post-date Mr Conisbee’s involvement; rather, those paragraphs make plain that Mr Stagg’s view fundamentally differed from that of Mr Conisbee based on materially indistinguishable evidence. Again, the University continues to seek to rely upon parts of the work of Mr Conisbee, as selected by the University (to support its case on the alleged defects in the brickwork and how they should be remedied). See paragraphs 102 and 103 of the Amended Particulars of Claim dated 9 March 2021 as well as the introduction to Appendix 1 thereto (which refers to Mr Conisbee’s draft report dated 22 February 2016 and supplementary report dated 18 May 2017. The University also relies upon (including in Appendix 1) parts of the work of Martech, in particular a report dated 24 January 2020 which was produced in accordance with a brief produced by Mr Conisbee dated 5 December 2019.”

“We refer to your letter dated 11 August 2022 in which you seek the University’s agreement to disclose documentation relating to experts that are no longer instructed by it. “You state that three experts fall into this category, Dr Stephen Garvin of the BRE, Dr Ron Casson of Bickerdike Allen Partners and Alan Conisbee of Alan Conisbee and Associates and allege (wrongly) that the University is ‘expert shopping’. “You infer that the University ceased to instruct these individuals on the basis that “their opinions were developing or had developed in such a way that the University considered that their evidence before the Court would be adverse to its case.” “These allegations are without merit, unsupported by any of the facts and, in some respects, disingenuous. The University sets out its position in relation to each of the three experts below. Dr Stephen Garvin “Dr Garvin (of BRE) was instructed by AA Projects Ltd on behalf of the University in 2013 to conduct a detailed site survey and prepare a concluding report. As you state in your letter of 11 August 2022, Dr Garvin was instructed at a time when a process of engagement and cooperation between the parties had occurred, such was the level of engagement at this time that Dr Garvin/BRE were selected from a list of potential candidates that had been circulated between the parties. “This is confirmed by the letter of instruction dated 1 March 2013, a copy of which is appended to this letter, which states: “In essence, the University is now looking for a suitably qualified and competent organisation to be employed as an independent specialist in this matter to carry out a detailed site investigation and prepare a concluding report. The whole construction team and University are still in open discussion about the problems being encountered and several members of the construction team have repeatedly emphasised their desire to rectify the problems to the University’s satisfaction when a detailed solution is agreed (although this does of course remain to be seen).” “The University shared the BRE report in 2013 with all parties and then BRE’s follow up comments in April 2014. The follow up comments responded to queries from JMP, LOR and Ramboll (now Gifford). At tis stage, all parties (i.e., The University, JMP, LOR and Ramboll) had and expressed concerns about the quality and completeness of BRE’s investigations and felt further information was necessary before reaching a view on the cause of the problems and any potential repair scheme. This culminated in a proposal by the University that as new report be commissioned from a jointly instructed expert. It is simply wrong to suggest that LOR is not aware of and is entitled to know what views Dr Garvin expressed and why the University no longer instructs him. It is equally wrong to suggest that there is any ‘expert shopping’ in this regard. “In the email exchanges which followed this proposal, Mr Dave Saville of LOR sent an email dated 29 May 2014 which said, “Apologies for the time taken to respond but I now have “approval in principle” for us to jointly appoint an independent expert to commission a new report, as suggested by yourselves within the correspondence noted above.”