Interference in obtaining expert evidence – solicitors under scrutiny

Interference in obtaining expert evidence – solicitors under scrutiny 12 Jul

In the recent case of Glover & Glover v  AXA XL Insurance Company Limited, the Court was asked to consider the admissibility of expert evidence where the Claimants applied for permission to change their appointed expert following the preparation of the experts’ joint statement.

Background

The Glovers undertook extensive refurbishment and extension works to their property – to include constructing a new basement and a full loft space. During the works, damage and cracking was suffered by the neighbouring properties.  After lengthy delays, and the replacement of the main contractor, the works were completed in May 2021.

Having incurred significant investigation costs, and facing claims from their neighbours (which they would seek to pass to insurers), the Glovers issued proceedings against their structural engineer and AXA XL.

In April 2023, the Court gave permission to the parties to call expert witnesses in respect of structural engineering and quantum.  The Glovers engaged Mr Hardy as their structural engineering expert, with a Mr Tucker engaged by AXA XL.

The parties’ experts prepared an experts’ joint statement (“EJS”) in accordance with CPR 35.12(3). During that exercise, Mr Tucker indicated to his instructing solicitors, RPC, that he considered “significant changes” to Mr Hardy’s views had occurred between the preparation of versions 3 and 4 of the EJS, specifically that there had been involvement from the Glovers’ solicitors.

RPC wrote to their opponents, Penningtons Manches Cooper (“PMC”), to raise concerns as to the way the EJS process had been undertaken.  In particular, RPC queried whether PMC had “complied at all times with the guidance in paragraph 13.6.3 of the TCC Guide”.

The TCC Guide provides: “Whilst the parties' legal advisers may assist in identifying issues which the statement should address, those legal advisers must not be involved in either negotiating or drafting the experts' joint statement. Legal advisers 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."

In response, PMC asserted that their approach when liaising with Mr Hardy regarding the EJS had been “entirely in line” with the guidance provided by the TCC Guide and “we offer guidance to experts in an attempt to ensure they address the pleaded issues and do so clearly. The substance of their views are a matter for them and we do not (and have not here) sought to supplant our views for theirs.”

Given the indication from Mr Tucker as to the amendments to the EJS text, RPC pursued matters further regarding the import of the TCC Guide.  Relying upon the decision of HHJ Davies in BDW Trading Ltd v. Integral Geotechnique (Wales) Ltd [2018] EWHC 1915 (TCC),  RPC wrote to PMC noting that the Court had recognised “There may be cases, which should be exceptional, where a party or its legal representatives are concerned, having seen the statement, that the experts' views as stated in the joint statement may have been infected by some material misunderstanding of law or fact. If so, then there is no reason in my view why that should not be drawn to the attention of the experts so that they may have the opportunity to consider the point before trial.”

RPC concluded by noting that if their concerns were not addressed, AXA XL would make an Application to invite the Court (a) to withdraw its permission for the Claimants to rely on Mr Hardy's evidence and/or (b) to permit AXA XL to cross-examine Mr Hardy on the issue at trial and/or (c) to make the Glovers’ right to rely on Mr Hardy's evidence at trial conditional upon disclosure of versions 3 and 4 of the EJS and/or of the comments thereon made by the Claimants' legal team.   In the absence of a substantive reply, that Application was issued on 23 February 2024.

By way of letter dated 14 March 2024, PMC acknowledged that its “conduct of the joint statement process was not fully in compliance with the applicable rules and/or guidance. Any non-compliance is not an admission of any compromising of Mr Hardy's independence nor his expert views.”   PMC proposed that the Glovers’ permission to rely upon their own expert’s (Mr Hardy’s) evidence be revoked and that permission be given to rely upon an alternate expert – with the Glovers to pay their own costs and pay AXA XL’s reasonably incurred costs for re-doing the engineering experts' joint statement and report stages.  The Glovers issued their own Application seeking such an Order.

The Application

Where AXA XL’s application to revoke the Glovers’ permission to rely upon Mr Hardy’s report was, effectively, conceded, the Court had to determine whether the Glovers should have permission to rely upon an alternate expert’s report and/or whether any such permission should be conditional upon disclosure of communications between PMC and Mr Hardy.

It was apparent from the evidence submitted by PMC that extensive revisions to various drafts of the EJS had been proposed by PMC.  However, PMC argued, the proposed amendments were not intended to change the opinion of Mr Hardy, rather they were directed at seeking to better convey what were believed (by PMC) to be Mr Hardy’s views and to express those having regard to the pleaded issues.

The Court had regard to the decision of Fraser J (as he then was) in Imperial Chemical Industries Ltd v. Merrit Merrall Technology Ltd [2018] EWHC 1577 (TCC) where he stated:

"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.” The Court set out a number of principles such as (i) the experts having access to the same materials, (ii) experts should not take a partisan stance on interlocutory applications, and (iii) the process of the experts meeting under CPR 35.12 is an important one since it enables there to be a constructive and co-operative process.

The Court accepted that PMC’s departure from the TCC Guide and the principles governing the preparation of evidence, however misguided, was not the same as a ‘deliberate and knowing disregard of the applicable principles’.

The Court considered a number of decisions as to the circumstances in which permission for a replacement expert could be given and as to the conditions to be attached.  The cases ranged from those where the party’s counsel had lost confidence in the retained expert, to those where ill health had necessitated a change in expert, to those where experts had breached their obligations under CPR Part 35 such that new experts were considered necessary.

Against the backdrop of, what the Court found, was “substantial and impermissible interference [by PMC] in the expert statement process”, the Court, nevertheless, recognised it needed to have regard to the overriding objective and the need to deal with cases justly.

Where the Court noted that the trial date would not be impacted by a change of expert, it granted permission for an alternate expert to be appointed where engineering evidence was recognised as being central to the issues in the proceedings.  To disallow this would mean the claimants would “likely be at a very significant and possibly insurmountable disadvantage”.

The Court was, on balance, satisfied that it could not support a conclusion on the papers before it that there was “an attempt to change the opinion of Mr Hardy on the central issues in dispute”.

The Court also noted that the conduct complained of was attributable to PMC rather than to the Glovers or their appointed Counsel.  Refusing a change of expert would, possibly, lead to PMC being replaced and a further claim being pursued against PMC later.  That would add to the Glovers’ use of court time and resources rather than reduce it.

PMC had, in preparing their evidence for the hearing, waived privilege in a significant volume of documents (to include the draft joint statements and PMC’s working comments).  However, AXA XL sought disclosure of all attendance notes and email correspondence passing between PMC and Mr Hardy.

The Court found that this was not a matter where there had been “expert shopping”, ie the perceived practice of locating an expert who agreed with a party’s views of a case rather than alighting upon an expert who would adopt an impartial approach. On balance, the Court determined that the extent of disclosure given by PMC in respect of the Application was adequate to satisfy it that ‘full information’ was available to AXA XL consistent with existing caselaw.  The request for further documentation was, therefore, refused.

Edesia Law comment

As the Court recognised, Applications of this type are, by their very nature, fact specific.

In this case, the Court accepted that PMC’s involvement, whilst well-intentioned, was misguided and would lead to the situation where the Court could not be satisfied that Mr Hardy’s views remained truly independent.  Where his integrity had, effectively, been compromised (though he offered no evidence on the point), the Court permitted the change in expert where the trial timetable was not impacted.  The Court noted that had more serious interference occurred and/or if the change of expert had necessitated vacation of the trial, the balance to be struck between fairness to the parties and the need to dispose of matters efficiently may have led to a different outcome.

The case is a timely reminder, if one were needed, that duties owed by experts, per CPR Part 35, are to the Court rather than to the party instructing them.  Those obligations are imposed to ensure that the Court is presented with the evidence to enable it to be the final arbiter of the issues in the case and to avoid the parties and/or their representatives interfering unduly in that evidence-gathering process.

ENDS

Simon Thomas is a Partner at Edesia Law.