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The use of experts only works when everyone plays by the same rules

Icons CourtColin Ricciardiello looks at the use of expert witnesses in the wake of an important recent decision.

During a trial, the Technology and Construction Court (TCC) prevents a Defendant from relying on 3 experts’ reports because of breaches of CPR Part 35.

On day seven of the trial in Dana UK Axle Ltd v. Freudenberg FST GMBH (TCC) [2021] EWHC 1413, the Claimant (“Dana”) applied to debar the Defendant (“FST”) from: (i) relying on its three experts' reports; and (ii) any of the three experts giving oral evidence.

Whilst the facts and FST’s conduct leading up to this application are out of the ordinary, the principles of the judgment are a cautionary reminder that use of expert evidence is a matter of permission of the court (CPR 35.4(1) and that permission can be withdrawn if there is not full compliance with the CPR’s requirements for instructing experts and the contents of their reports.

The claim arose out of the alleged premature failure of pinion seals manufactured by the FST and supplied to Dana for installing in rear axles in nine Jaguar Land Rover models. The failure led to multiple million pound warranty claims.

FST were late in serving their experts reports and also failed to identify and list the material instructions – oral and written – on which the experts had relied as required by CPR 35.10(2), CPR 35PD.3.2(3) and paragraph 55 CPR of the 2014 Expert Evidence Guidance. The latter states that: the mandatory statement in reports as to the substance of all material instructions should not be incomplete or otherwise tend to mislead; the imperative is transparency; “instructions “ includes all material that solicitors send to experts; the omission of off the record oral instructions from the statement as to what makes up those instructions is not permitted.

Further, it was apparent from the two reposts that two of the experts had undertaken site visits to FST factories without putting Dana on notice and offering Dana’s experts an opportunity to attend as required by the paragraphs 13.3.2 and 13.3.4 of the TCC Guidance.

When relief from late service was granted at the Pre-Trial Review, FST were ordered to serve revised reports which complied fully with the CPR ( “the PTR Order”). Specifically, they had to provide full details of all materials provided to the Experts by FST’s solicitors and FST itself and disclose all documents produced or provided in respect of the site visits.

FST served two revised reports with lists of documents on which the 3 experts had relied. Dana did not consider that they complied with the order for identification/listing of documents provided to the experts. In this regard Dana served written questions (under CPR 35.6) to 2 of the experts. The answers showed that information was provided by FST to the experts direct without their solicitor’s oversight and emails providing this information were not disclosed to Dana and their experts.

On the first day of trial Dana made submissions on these shortcomings and maintained that FST should provide a full list of the materials provided to the experts – not least because the case was about FST’s manufacturing defects. FST had an intimate knowledge of its own manufacturing processes, and it was therefore essential to level the playing field between the experts. The Judge accepted those submissions and ordered FST’s solicitors to provide a witness statement giving an account of the contact between FST and its experts, including details of all information and documents passed to them.

The Judge noted at paragraph 40 of her judgment that Paragraph 55 of the 2014 CPR guidance on instructing experts specifically contemplates that instructions will be provided to experts by Solicitors. She remarked that it went without saying that parties cannot avoid this requirement for transparency by engaging directly with their experts and bypassing any involvement on the part of their Solicitors. These requirements which led to the establishment of a level playing field in cases involving experts requires careful oversight and control on the part of lawyers instructing those experts; all the more so in cases that involve experts from other jurisdictions who may not be familiar with the rules that apply to this jurisdiction. For the reasons which have not been explained there has been no such oversight or control over the experts in this case”- see paragraph 93 of the judgment.

That order produced 175 documents which revealed “… serious flaws in the conduct of FST’s experts” (paragraph 70 of the Judgment); “… a free flow exchange of information between the Experts and FST’s employees and in-house technical specialists, through extensive email exchanges, numerous telephone and video conferences and at site visits …” ( see paragraph 72 of the judgment) with little or no oversight from FST’s solicitors and no proper record of the information supplied during visits.

Some of this direct contact occurred during the time of the joint expert meetings and signing of the experts’ Joint Statement.

Against this background Dana applied to debar FST from relying on expert evidence on the grounds of: a breaches of the PTR Order to provide details or materials provided to the experts; breaches of CPR 35 and the TCC Guidance relating to instruction of experts. Dana succeeded.

In particular the Judge observed and held that ;

(i)The requirements for experts to have access to the same relevant information is an aspect of the overriding objective’s aim of securing equality of arms under CPR Rule 1.1(2)(a) – see paragraph 37 of the judgment.

Fulfilment of that aim is the reason why experts’ reports have to state the substance or material instructions whether written or oral on the basis on which the report is written – CPR 35.10(3), paragraph 3.2(3) of the CPR PD 35 and Paragraph 55 of the 2014 Guidance.

(ii) FST’s failure to comply with the PTR Order to give full details or materials provided to the experts by FST’s Solicitors and FST itself was “… not just a technical or unimportant breach. It is essential for the Court to understand what information and instructions have been provided to each side’s experts, not least so that it can be clear as to whether the experts are operating on the basis of the same information and thus a level playing field. Experts should be focussed on the need to ensure that information received by them has also been made available to their opposite numbers”. As Fraser J. said in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC) at [237(1)]: “Experts of like discipline should have access to the same material. No party should provide its own independent expert with material which is not made available to his or her opposite number”. – see paragraph 35 of the judgment

(iii) The Judge held that it was entirely unacceptable for Dana and the Court to discover during the course of the trial that FST’s experts had engaged in site visits about which they did not inform Dana’s experts at the time, and in respect of which they apparently kept no records, but also there were more site visits than had previously been disclosed in their reports. That meant that the need in paragraph 30 of the 2014 Guidance for experts to have access to the same information was not satisfied; 13.3.2 of the TCC Guide requiring experts to cooperate fully with one another, including in particular where tests, surveys and investigations were being undertaken, had been ignored.

(iv) “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 pre-supposes compliance with all material respect of the rules. I agree with Mr Webb’s submission [Counsel for Dana] that the use of experts only works where everyone plays by the same rules. If those rules are flouted, the level playing field abandoned and the need for transparency ignored, as occurred in this case, then the fair administration of justice is put directly at risk”- see paragraph 94 of the judgment and paragraph 74 which lists the rules held not to have been complied with.

Conclusions

Underlying this judgment is the important policy reasons for full compliance with the rules in order to achieve a level playing field between experts through transparency and verifiable access to the same material.

As the Judge noted the principles that govern expert evidence must be carefully adhered to and those principles are directed towards presenting to the Court expert evidence for its assistance which is independent and the product of the experts being on equal terms. The absence of compliance with the CPR risks prejudicing the fair administration of justice; that is not be tolerated and may, as in this case, cause the imposition of severe sanctions.

It was held that the Defendant’s failure to comply with the conditions attaching to the PTR Order giving permission to rely on expert evidence was unlikely to have been inadvertent; the Defendant could not comply with those requirements without revealing the nature and extent of its serious breaches of CPR 35 by the direct, unsupervised contact between client and expert. However, given the policy objectives in play, the chances are that if a serious breach was inadvertent, then that ought not to make a difference to the imposition of any sanction.

Colin Ricciardiello is a partner at Sharpe Pritchard LLP


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