The recent decision in Glover and Another v. Fluid Structural Engineers & Technical Designers Ltd and Others[1] should serve as a warning to practitioners to pay heed to the strict rules regarding expert evidence and, in particular, not to interfere at all with the production of the joint expert report
Background
The claimants’ solicitors had provided the claimants’ expert with extensive comments on the draft joint experts’ report. Having been alerted to this by their own expert, the sixth (and only remaining) defendant drew the claimants’ solicitors’ attention to paragraph 13.6.3 of the Technology and Construction Court Guide:
Whilst the parties’ legal advisors may assist in identifying issues which the statement should address, those legal advisors must not be involved in either negotiating or drafting the experts’ joint statement. Legal advisors should only invite the experts to consider amending any draft joint statement in exceptional circumstances where there are serious concerns that the court may misunderstand or be misled by the terms of that joint statement. Any such concerns should be raised with all experts involved in the joint statement. (emphasis added)
The claimants’ solicitors initially sought to justify their involvement by reference to section 75 of the Civil Justice Council’s Guidance for the instruction of experts in civil claims, which states that primary responsibility for the preparation of the agenda for the experts’ meeting should normally lie with the parties’ solicitors, but subsequently conceded that their conduct was not fully in compliance with the applicable rules and/or guidance. Further, they recognized that while there was no intention to have any impact on the views of the expert, the court could not now be satisfied as to the expert’s independence. They therefore sought the court’s permission to call an alternative expert.
The High Court’s decision
The judge expressed the view that, even if there was no intention to have an impact on the views of the expert, there was no excuse for the claimants’ solicitors’ conduct. However, the judge concluded that justice would best be served in this case by granting the claimants permission to rely on a replacement expert for the following reasons:
- Without the expert evidence the claimants would be at a very significant and possibly insurmountable disadvantage.
- The expert evidence could be timetabled in a way that preserved the trial date and would not cause unfairness to the defendant.
- There was no evidence that supported a conclusion that the claimants’ solicitors had attempted to change the opinion of the original expert on the central issues in dispute.
- The conduct complained of was not that of the claimants but their solicitors.
- There had been full and frank admission and an apology given by the solicitors.
The judge emphasized that if the consequence of a replacement expert had been to lose the trial date then, for that reason alone, he would not have granted permission.
Takeaway
At every stage of the expert evidence process, both the legal practitioners and the expert must be careful to comply with all the relevant rules and guidance, variously contained in Part 35 and Practice Direction 35 of the Civil Procedure Guides, the Guidance for the instruction of experts in civil claims, and the applicable court guide.
The Technology and Construction Court Guide, the Kings Bench Court Guide, and the Chancery Court Guide all explicitly prohibit legal advisers from being involved in the joint expert report other than in exceptional circumstances where the court may be misled. The Commercial Court Guide does not address the point specifically but that should not be taken as an indication that such involvement will be tolerated. Regardless of the court in which the case is proceeding, experts must be (and must be seen to be) independent. Any interference by the parties or their legal representatives in the production of an expert’s evidence runs the risk of falling foul of this.
Although the claimants were given permission to call a replacement expert in this case, that was only due to the specific circumstances set out above. Given that expert evidence is frequently only produced shortly before trial, there will often not be enough time for parties to have another go should they be found not to have conducted the expert process properly the first time.
[1] [2024] EWHC 1257 (TCC)
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