English courts send a message to experts (and their instructing solicitors)

Written by Huw Wilkins, Senior Associate, Fenwick Elliott

 

Expert evidence can be crucial to the success, or failure, of a construction dispute; for example, a case can turn on a judge’s preference for one expert’s delay analysis over the other. Consequently, as Huw Wilkins explains, it is important that experts, as well as instructing solicitors and clients, understand the rules regulating expert evidence in dispute resolution procedures.

 

The Rules and Guidance
Part 35 of the Civil Procedure Rules deals with experts. Part 35.3 provides that an expert’s duty is to help the court on matters within his or her expertise. That duty overrides any obligation to the person from whom an expert has received instructions or by whom the expert is paid. Part 35 also includes (for example) rules about the contents of an expert’s report. Practice Direction 35 provides further detailed rules as to the conduct of experts and those instructing them. At the forefront of those rules are that:

 

• experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate (Part 2.2);
• experts should consider all material facts, including those which might detract from their opinions (Part 2.3); and
• if, after producing a report, an expert’s view changes on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court (Part 2.5).

Further guidance is set out in the Guidance for the Instruction of Experts in Civil Claims 2014 and the relevant Court Guides (e.g. Section 13 of the TCC Guide), as well as the Academy of Experts and Expert Witness Institute Joint Code of Practice and any code from a relevant professional body.

 

Experienced experts will be familiar with the rules and guidance, but should nevertheless refresh their memories regularly. Those undertaking the role of an expert for the first time should review all the relevant guidance so that they understand what is expected of them from the outset.

 

There are also cases in which the court has been asked to, or has otherwise felt it appropriate to, comment on the conduct of experts and those instructing them. We now turn to some of the more recent examples of these cases.

 

Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd (1)
Mr Justice Fraser dedicated a significant portion of his judgment in this case to his assessment of the parties’ quantum experts, their role in the litigation process and their duties to the court. He said:

 

“The principles that govern expert evidence must be carefully adhered to, both by the experts themselves, and the legal advisers who instruct them. If experts are unaware of these principles, they must have them explained to them by their instructing solicitors. This applies regardless of the amounts in stake in any particular case, and is a foundation stone of expert evidence. There is a lengthy practice direction to CPR Part 35, Practice Direction 35. Every expert should read it.”

 

He then went on to identify certain practical matters for experts to bear in mind, including, for example, that experts of like discipline should have access to the same material, before concluding:

 

“There are some jurisdictions where partisan expert evidence is the norm. For the avoidance of any doubt, this jurisdiction is not one of them. Not only experts, but the legal advisers who instruct them, should take very careful note of the principles which govern expert evidence.”

 

Dana UK AXLE Ltd v Freudenberg FST GmbH (2)
In this case, after the court had heard from the parties’ witnesses of fact and the Claimant’s technical experts, the Claimant applied to exclude the Defendant’s technical expert evidence. This was the culmination of what appears to have been a longstanding and complex exchange regarding that technical expert evidence.

 

The Defendant served evidence from three technical experts eight days’ late. Whilst the Claimant did not take issue with the late service, it did object to defects in that expert evidence, including:

 

• None of the expert reports identified the documents on which the experts relied or included a list of documents provided to each expert.
• Two of the experts had undertaken site visits, without giving the Claimant notice of those visits, or affording the Claimant’s technical experts a similar opportunity. Furthermore, no photographs, notes or other documents were provided with their reports evidencing the information collected.
• When referring to data or other information, the reports did not always provide references to the document or source of data relied upon, thereby causing prejudice to the Claimant’s legal team in trying to read and understand those reports.

By a Pre-Trial Review Order, the Court ordered that the Defendant could rely on its technical expert evidence so long as it complied with certain conditions (including, providing full details of all materials provided to the experts).

 

Although the Defendant served revised reports from two of its three technical experts, the Claimant considered they did not comply with the Pre-Trial Review Order. Of particular concern to the Claimant was the apparent contact and exchanges of information directly between the technical experts and client without any oversight from the legal team. Ultimately, the Claimant made an application to exclude the Defendant’s technical expert evidence in full. Mrs Justice Smith held that:

 

• There had been a serious breach of the requirement to provide full details of all the materials provided to the experts. The Defendant had never identified all of the materials provided to the experts and had provided a significant, amount of information to its experts that had never been disclosed to the Claimant’s experts. This was not just a “technical or unimportant breach”. It was essential for the Court to understand what information had been provided to each side’s experts to check whether their opinions were based on the same information.
• The Defendant’s experts had access to the Defendant’s various sites which had not been shared with the Claimant’s experts. In the Judge’s view, it was difficult to come to any conclusion other than that the guidance in the TCC Guide as to the need for experts to “co-operate fully” with one another, including, in particular “where tests, surveys, investigations, sample gathering or other technical methods of obtaining primary factual evidence are needed”, had been ignored.

As a result of the Defendant’s breaches of the Pre-Trial Review Order, the Judge held that the Defendant could not rely on those reports - the expert evidence was excluded in full. Whilst this decision turned on breaches of a Court Order, Mrs Justice Smith also commented on these breaches in the context of CPR 35 and the 2014 Guidance and concluded that in that context too they would justify the refusal of permission by the Court to the Defendant to rely on its technical expert reports. She noted that the provision of expert evidence is a matter of permission from the Court, not an absolute right (see CPR 35.4(1)) and such permission presupposes compliance in all material respects with the rules. The purpose of those rules is to establish a level playing field, without which the fair administration of justice is put at risk. In order to ensure that level playing field, careful oversight and control is required from the lawyers instructing those experts – especially in cases involving experts from other jurisdictions who may not be familiar with the rules that apply in the courts of England and Wales.

 

Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd (3)
The Claimants, having sought £3.7million in damages (and having turned down two Part 36 offers for £50,000 and £110,000), were awarded just £2,000 and were subject to a number of criticisms in the judgment, including about one of their experts. The court noted that the parties’ structural engineering experts were “similarly and highly qualified” but it preferred the evidence of the Defendant’s structural engineer because the Claimants’ expert (amongst other things):

 

• persistently embellished (and exaggerated) his criticisms of the Defendant;
• constantly introduced new concepts or issues during his oral evidence which were not identified in his report;
• relied on material that had no relevance to the issues under consideration;
• went beyond his own expertise; and
• changed his agreement with, and reliance upon, the work of his associate whose report and work formed an appendix to his written report, about which the judge said “This suggests to me that because the eccentric loading point did not assist the claimants’ case, he disavowed it”.

 

By contrast, the Defendant’s structural engineering expert: “sensibly agreed with points put to him, whether they advanced [the Defendant’s] case or not. He had, in any event, already agreed in the Joint Statement that, in certain respects, [the Defendant] had been negligent. He approached his expert exercise applying, and his cross- examination demonstrated, a completely objective approach to the expert issues.”

 

In summary: the Defendant’s expert gave the impression that his evidence would have been exactly the same had he been instructed by the Claimants, whilst the Claimants’ expert sought to advance the Claimants’ case at the expense of his own objectivity.

 

The case returned to the TCC for a decision on costs (4). Under the conventional operation of the rules on Part 36 offers, the Defendant would have been entitled to its costs from the last date for acceptance of its first Part 36 offer. But, instead, the Defendant sought all of its costs. Several reasons were given for this, including the criticisms of the Claimants’ expert.

 

Insofar as the expert’s conduct was concerned, Mr Justice Fraser noted that, although the Claimants’ expert’s approach left much to be desired, it did not, by itself, justify an award of indemnity costs.  But he did sound a note of caution about experts’ compliance with their duties generally, saying there is a “worrying trend” developing of failures by experts generally in litigation to comply with their duties. He then emphasised that CPR 35.3 makes clear that an expert’s duty is to the court and that this overrides any duty to his or her client.

 

Conclusion
The role and duties of experts in litigation in the Courts of England and Wales are clearly set out in the Civil Procedure Rules and accompanying Practice Direction. Other guidance is also available from the Courts and professional bodies. Over more recent years, there has been increasing scrutiny of compliance with those rules. The cases above illustrate that it is crucial that all parties to litigation (including clients and instructing lawyers) understand those duties and comply with them. The consequences of breaching these rules can be significant.

 

Dana UK AXLE Ltd v Freudenberg FST GmbH involved parties and experts from multiple jurisdictions - a scenario common to international arbitration disputes. In all disputes, no matter what forum, it is important from the outset for parties to understand the applicable rules to an expert’s involvement and to establish procedures to ensure compliance with those rules. These procedures must then be complied with throughout. Failure to do so might have consequences as to the credibility, or (in extreme circumstances) even the admissibility, of that expert evidence.

 

Author

Huw Wilkins is a Senior Associate at Fenwick Elliott and has a broad range of experience of construction and engineering law and specialises in dispute avoidance and resolution.  

 

In over 10 years practicing construction and engineering law, he has acted on both domestic and international projects across a number of sectors including: oil & gas, renewable energy (off-shore wind and hydro-electric projects), transport (road, rail and container terminal projects), process plant & equipment and building (residential, commercial and municipal building projects).  He also spent some time seconded to a UK environmental consultancy.  

 

Huw has acted on behalf of owners and members of all levels of the supply chain for construction and engineering projects.  Specialising in dispute avoidance and resolution, he often gives strategic advice during the course of projects and also has experience of adjudication (including enforcement of decisions), arbitration, litigation and mediation.

 

References

1. Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577(TCC)
2. Dana UK Axle Ltd v Freudenberg FST GMBH [2021] EWHC 1412(TCC)
3. Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1116 (TCC)
4. Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd (No. 2 Costs)[2021] EWHC 1414 (TCC)