A cautionary tale- the importance of an expert witness remaining independent
A CAUTIONARY TALE
Andrews & Ors. v Kronospan Ltd [2022] EWHC 479 (QB)
The Senior Master has given judgment on the Defendant’s application in the course of managing group litigation which has resulted in the claimants right to rely upon their designated expert witness (to whom fees of over £250,000 had already been incurred) being revoked. It had been admitted that, contrary to the spirit if not the letter of CPR Part 35 and its accompanying practice direction insofar as they relate to discussions between experts, there had been a serious transgression by the claimants’ expert witness. He was to give evidence of dust analysis and also of the modelling of geographical dispersal of dust from a particleboard factory in claims in private and public nuisance. It came out almost by chance that he had sought and been given repeated assistance with the contents of the joint statement on dust analysis during discussions with his opposite number.
This decision amounts to an explicit application to litigation proceeding in the Queen’s Bench Division of the requirements of the Technology and Construction Court Guide which the Senior Master held was of “general utility and applicability”. It makes it very clear that legal advisers are not to be involved in such discussions nor are they to provide assistance if it is requested as to the content of the joint statement. That of course is the obligation of the expert himself as much as the solicitors instructing. Observations in BDW Trading Ltd v Integral Geotechnique (Wales) Ltd [2018] EWHC 1915(TCC) and Dana UK Axle Ltd v Freudenberg FST GmbH [2021] EWHC 1413 (TCC) were applied.
This provides a timely warning of the need for legal representatives to be scrupulous, following exchange of reports, to avoid any participation in the joint statement process. It is of course inevitable and perfectly proper for them to speak to their instructed expert to get comments on the content of the report served by the opposing party. But once that is done and the experts have begun their joint discussions (which may follow the preparation of an agenda to which the legal advisers are entitled to contribute) experts are essentially in “purdah” and must be left to complete their statement unaided and uninfluenced by anyone else. Indeed it is for this reason that the content of discussions between experts are not to be referred to at trial and parties are not bound by any agreement arrived at by the experts (CPR 35.12 (4) and (5)). The one exception to this requirement of complete separation of function is recognised in BDW namely that legal representatives might be shown a draft before final signature solely to avoid the joint statement being “infected by some material misunderstanding of law or fact”. However if that occurs it must be done openly so that each side’s representatives can contribute to any suggestions or corrections and everyone, including the trial judge, can see what has happened.
The Senior Master has left open the possibility that the claimants might apply for a replacement expert. Having been shown various iterations of the draft joint statement on dust analysis which contained the comments of the claimants’ solicitors, she also took the opportunity to remind all concerned of the importance of such statements being concise and not having the quality of a “long and repetitive pleading”.
Michael Kent KC leading Michael Jones on the instructions of Clyde & Co Claims LLP acted for the Defendant.
