The duties and conduct of expert witnesses are the subject matter of Blackpool Borough Council v Volkerfitzpatrick Ltd (2020) EWHC 387 (TCC). In a construction dispute, concerned with design and build contracts for a new tram depot, the defendant contractor applied for orders that (a) the claimant should not be permitted to rely on the evidence of two of its experts (D and C) on the basis that they had shown a lack of independence and (b) the claimant’s claims should be struck out on the basis that without such expert evidence they were bound to fail. The Judge held that D and C had not been guilty of any wrongdoing, and dismissed the application.
The trial was due to take place shortly. The claimant was heavily reliant on the evidence of D and C, who were its expert structural engineer and its corrosion expert respectively. The parties’ corrosion experts were required to produce a joint statement to specify the agreed joint inspection and testing procedure. Failing agreement, the parties were given permission to apply to the Court to determine that procedure. An independent company (S) was instructed to carry out the requisite sampling and testing work. S performed such work in July 2019.
However, in September 2019, D made a unilateral approach to S and asked it to undertake additional tests on the claimant’s behalf. At a meeting of the corrosion experts, C did not mention the ongoing testing. However, the results of the additional tests were sent by D to all the corrosion experts before a further joint meeting.
D gave the following explanation for his unilateral approach to S; that he had noticed an uneven distribution of the metallographic samples undertaken by S, and it seemed sensible that further samples should be taken from the galvanised components to provide a better sample distribution; and the claimant’s decision to instruct S independently to undertake the additional tests was simply a pragmatic decision made in the light of the limited time available and impending deadlines for the liability experts to complete their tasks.
The defendant argued that the reason for the separate testing, particularly in the context of the secrecy with which it had been arranged and obtained, was to enable the claimant and the experts to make use of the further results only if they supported the claimant’s case. The actions of D and C were said to betray a lack of independence.
The defendant relied upon the following key legal propositions. The first is that if a party seeks to rely upon expert evidence where the expert has not complied with the recognised duties of an expert witness to be independent and impartial the court may exclude the evidence as inadmissible rather than merely taking such non-compliance into account when deciding what weight should be attached to the expert evidence. That proposition was not disputed. The second proposition is that a challenge to the admissibility of expert evidence ought to be dealt with at an interlocutory stage rather than being left to trial if it can fairly and properly be dealt with at that earlier stage. That was not disputed.
The Judge referred to the summary of the duties of an expert witness in The Ikarian Reefer (1993) 2 Lloyd’s Rep. 68 at pages 81/82, to CPR Part 35.3 and PD 35, at paragraphs 3.2 and 5, and to the August 2014 Civil Justice Council Guidance.
The Judge continued, at paragraph 19:-
“As the defendant and supporting parties submit, the TCC has consistently emphasised the principle of expert independence, so as to protect the integrity of the vital function which expert evidence regularly plays in litigation in the TCC. … where experts fail to perform their obligation of independence the TCC should be astute to take prompt and effective action.”
The Judge then addressed the position of single joint experts, and referred to “two important distinctions that must be kept in mind”, and said:-
“23. The first is that there is a distinction to be drawn between those who are genuine experts properly so called and those who are only appointed to undertake investigations and provide factual material upon which experts properly so called may rely in reaching conclusions. I accept … that expert evidence may extend beyond pure opinion evidence to encompass factual evidence, not based exclusively on personal observation, where that witness has sufficient knowledge and experience to draw on the general body of knowledge and understanding of the relevant expertise to give such evidence and that it is of sufficient utility to justify allowing the witness to give that evidence. Nonetheless, that factual evidence must still be of sufficiently expert nature to qualify as expert evidence properly so-called.
24. The second is that a distinction should be drawn between the role played by and duties imposed upon experts instructed by parties in a wide variety of circumstances to provide expert opinion (for example, a valuation expert in a rent dispute) and experts who are instructed in litigation where the parties instructing them have sought and obtained the court’s permission under CPR Part 35.4 to rely upon their expert evidence in that particular litigation. Whilst it is of course true that an expert who is not acting as a Part 35 expert will still owe professional obligations which are, in part, similar to the obligations owed by a Part 35 expert, nonetheless the full gamut of the specific obligations owed by Part 35 experts as provided for in Part 35 and its associated Practice Direction and as explained in the Guidance do not apply to such experts. This distinction appears from the Guidance at paragraph 5 and subsequently.
25. As regards single joint experts appointed under Part 35, very clear guidance was given by the Court of Appeal in the case of Peet v Mid Kent Healthcare NHS Trust [2002] 1 WLR 2010 as regards the propriety of unilateral contact between one party and a single joint expert …”
“27. … (a) to be expert evidence properly so called it must fall within the category of expert evidence; and (b) for the expert to owe the full gamut of obligations under Part 35 the court must have given a direction under Part 35.7.”
The Judge said, in relation to the separate instruction, at paragraph 57:-
“Having considered this evidence and the submissions made it is important in my view to give separate consideration to whether or not what had happened was in accordance with good or best practice and whether or not the role which Mr Davis and Dr Clarke, considered separately both from the claimant and from the claimant’s legal advisers and indeed from each other, played in what happened is such as to satisfy me that their expert evidence in its entirety should be ruled inadmissible on the basis that they have breached in a very serious manner the obligations imposed upon Part 35 experts to which I have already referred.”
The Court of Appeal in Peet had stressed that a party should never make unilateral contact with a single joint expert. However, S was not in the position of a single joint expert. It was instructed purely to undertake the mechanical processes stipulated by the joint statement. This did not involve it in exercising any expert judgment or offering any opinions on the results.
Nonetheless, the claimant should have made some attempt to reach agreement before proceeding unilaterally. However, It was also clear that the decision to instruct S unilaterally was not a deliberate breach of a clearly expressed term of the Court Order. Still less could it be said that it should have been apparent to D or C as expert witnesses that it was plainly contrary to their duties as Part 35 experts to be involved in any way in that decision. Despite their experience as Part 35 experts, it would not be right to treat them as if they had the detailed knowledge of civil procedure to be expected from litigation lawyers.
As to the decision to keep the instruction to S concealed from the other experts and the other parties, while the proper course would have been for the claimant to have sought agreement for a further joint instruction before seeking the Court’s permission to instruct S directly, that did not also carry with it a separate or associated obligation to notify the other parties if it decided, mistakenly but in good faith, to instruct S directly without first taking those prior steps. There was nothing in the principles established by case law or the CPR or the relevant Guidance which suggested that a part 35 expert was under an obligation to notify his fellow experts that he had recommended or instructed a testing house to undertake inspections and tests to be used to assist the expert in reaching opinions in relation to the issues on which his opinion was sought.
It followed that no criticism could properly be made of D or C for not disclosing the fact of the separate instructions to their fellow experts. What was clear was that the results of the further inspections and tests were disclosed to the other experts as soon as they were made available. That, of course, was entirely appropriate and in accordance with good practice and D and C’s obligations as Part 35 experts. Nonetheless, it would have been sensible for them to suggest to the claimant or its legal advisers that for good practical reasons the other experts should be notified of what was being done and given the opportunity either to offer comments or to attend the further inspections. D and C had however not been guilty of any wrongdoing.
The Judge concluded, at paragraph 77:-
“… even considering all of the separate allegations in the round I do not consider that they come anywhere near justifying the draconian order sought …”