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Peter Annison v Paul Nolan

SJE acting beyond Instructions

[2012] EWCA Civ 54 TEDR Volume: 17 Issue: 2

The Facts

The Appellant appealed against a damages assessment made in a personal injury claim against the Respondent.

In respect of serious injuries sustained by the Appellant arising from a road traffic accident the Claimant had admitted liability. That left the matter of damages to be determined.

At the assessment of damages hearing, the Claimant’s Special Damages schedule had two heads of future loss namely (a) do-it-yourself and gardening costs calculated at somewhat over £24,000, and (b) utility, maintenance and repair costs calculated at somewhat over £55,000.

A single joint expert was instructed as an architect to report on certain adaptations to a residence. However, the expert reported on differences between the parties other than in relation to adaptations and the expert report considered wide ranging matters which included maintenance and repair costs, that were outwith the expert’s specific terms of reference under his engagement.

The judge ordered £750 for future utility costs but made no mention of maintenance and repairs. An order of somewhat over £5,000 was made as to DIY and gardening costs.

The Issues

In this case the Court of Appeal had to consider the question of a single joint expert acting outside the scope of his engagement and his or her understanding of the role of a single joint expert. It also had to consider the factors to be taken into account by a trial judge when faced with unsatisfactory expert evidence.

The Decision

A serious procedural irregularity had occurred at the trial which the Court of Appeal considered made the trial judge’s decision unjust in respect of the home maintenance and repair costs. The expert he had been asked to deal with when appointed and instructed. The Court took the view that the expert had misunderstood both the scope of his engagement and his position as a single joint expert.

The trial judge had made no ruling on the admissibility or relevance of the expert report and made no reference to it in her judgement. Further to that, the trial judge had failed to deal with the report adequately – she neither excluded it as being inadmissible or irrelevant nor did she allow it to be admitted into evidence and thence to consider its content and give reasons for not making an order for the amounts put forward in the report. Accordingly the evidential position was so unsatisfactory and unclear that the Court of Appeal decided to remit the claim for maintenance and repairs to be heard and decided at a re-trial.

Comment

Here the Court of Appeal found that the single joint expert had stepped outside his remit and was dealing with things that he was not engaged to deal with. The trial judge was then faced with an evidential “mess” but unfortunately failed to deal with it and seemingly chose simply to ignore it in her determination of the case, which was also not appropriate. Plainly this case shows the importance of an single joint expert (and indeed this applies to any expert) understanding the nature and extent of his or her instructions and the terms of his or her engagement and then ensuring that the expert report does not extend beyond the scope of what the expert has been instructed to address. If the expert considers that his instructions are unduly constrained he could seek an amendment to those instructions or an explanation of the constraint (and ultimately the expert could include a caveat in the report dealing with the extent of his instructions and its potential consequences).

(1)Trebor Bassett Holdings Limited (2) The Cadbury UK Partnership and ADT Fire and Security PLC

Behaviour of Experts

[2011] EWHC 1936 (TCC) TEDR Volume 16 Issue 3

The Facts

The facts surrounded a catastrophic fire which destroyed the Claimant’s large confectionery factory in Pontefract. The issues surrounded the Defendant’s supply of a CO2 fire suppression system for the popcorn machinery where the fire broke out. It is not necessary for our purposes to dwell on the facts further.

The parties were both given permission to call two experts each, one in fire suppression systems and one in relation to forensic fire investigations. There was also permission given to the Claimant to serve additional expert evidence from an architect specialising in requirements for fire protection and safety in building construction and the spread of the fire. It is worthy of note at the outset, the latter expert escaped any criticism whatsoever from the Judge. The same cannot be said of the other experts.

At the first CMC in the case the parties were ordered to agree preliminary lists of liability issues to be considered and discussed by those experts. The parties failed to comply with that direction and no lists were prepared. At the second CMC the Judge ordered that the list be agreed so the experts could meet without prejudice and prepare a joint statement setting out matters upon which they agreed and disagreed. Those reports were ordered to be served together with, at a later stage, any supplemental reports necessary from those experts. Once again the parties and/or the experts did not agree a list of issues and no joint report was prepared. The Court was simply told that the experts had fallen out and therefore no statement could be prepared.

The Court gave some lengthy guidance arising out of its criticisms of the conduct of the four experts in the case.

Guidance

Firstly Mr Justice Coulson said that, “the experts appointed in civil litigation have no business to ‘fall out’ and to fail to comply with the orders of the Court. Experts are there to provide evidence on technical other purpose. If they take matters of personal disagreement to such level, they are failing to provide that service.”

Because there had been no joint report prepared, at the commencement of trial, the parties sought permission to allow each of the four experts mentioned above to provide an oral presentation to the Court. The Judge commented as follows, “it quickly became apparent to me that these presentations were designed to allow in to evidence a variety of disparate matters, some of which were not even in the extensive reports produced by the four experts in question. These presentations amounted, therefore, to a third attempt on the part of the experts to express their opinions.”

The joint statements were not in fact produced until part way through the trial. The Judge commented that, “unfortunately, they were of little or no use, because they were not focused on the issues between the parties. Instead, they operated as a sort of summary of some of the technical differences between the experts, often un-linked to the particular matters of important which I have to resolve.”

The Judge then set out his particular criticisms of each of the four experts in turn.

The Claimants’ fire expert

The Claimants’ fire expert had been called in to deal with the fire on behalf of the Claimant’s insurers within days of the fire itself. The principal problems with the evidence of this expert were found to be as follows:-

a) He failed to disclose his original report or notes which would have been prepared at a time when he had investigated the physical remains of the building and interviewed those who were there, advantages which no other expert had;

b) He relied on unsophisticated tests which made no attempt to replicate the conditions in the oil production area on the night of the fire;

c) He adopted an unacceptably partisan approach, particularly in his attempt to contextualise another report;

d) He failed to agree and/or carry out any joint testing with any of the other experts;

e) He failed to set out his theory as to fire spread in a coherent and comprehensive fashion. He was also criticised for changing his mind in a report then failing to explain why he did so.

The Defendant’s fire expert

He came in for criticism for having allowed students at Edinburgh University to carry out some testing which was relevant to his report. Apparently, no information about the tests had been disclosed other than the short summary given in the report which came from a blog taken from the internet which had been written by one of the students whilst they were doing the tests. There was apparently a video of the tests available but it had not been disclosed to the Claimants or the Court even at the time the Judgement was prepared. The tests were of course carried out unilaterally so were of no assistance to the other parties.

The Claimants’ fire suppression systems expert

His report was said to be inordinately long at 76 pages but failed to deal in any cogent way with the only issue on which the evidence could have been helpful. With regard to his supplemental report it was said to be a “paragraph by paragraph critique of Mr Jackman’s report, in which any semblance of the wood had been completely obliterated by the trees”.

The Judge further criticised this report and subsequent oral evidence for failing to get a grip of the real issues in the case. He commented that the report seemed to be operating on the basis that if the opposite experts said ‘x’ he should say ‘y’ no matter whether the issue was relevant or not. In terms of oral evidence, this was said by the Judge to have “degenerated into bad tempered bickering”. He criticised the witness for repeatedly failing to answer questions put to him and being unwilling to make even the most basic assumptions in order to answer the questions being asked.

The Defendant’s fire suppression system expert

He came in for criticism because his report was taken up with criticisms of the Claimants which did not apparently form any part of the pleaded allegations of contributory negligence so were irrelevant and inadmissible. The testing that he had used was not fully explained in his report and the Claimants had been engaged in trying to elicit information about them to allow them to complete their own expert evidence.

Having completed a précis of the criticisms, the Judge outlined what should have happened.

The Judge stated, in terms that firstly a list of issues should have been agreed between the solicitors to form an agenda for the experts meeting. Secondly, those meetings ought to have occurred and a joint statement ought to have been prepared. That would have been in accordance with the original Court Orders. He stated that if there had been a problem the parties should immediately have come back to Court for help. He criticised the experts for not conducting their meetings properly and in a way which would have revealed that further testing/ experiments were necessary. A programme for those tests in his view should have been drawn up and they should have been planned and carried out either jointly or at the very least in the presence of everybody.

Had matters been dealt with in this way the issues would all have been dealt with to enable the trial to run smoothly. Instead the Court had to struggle with, “unsatisfactory and disparate expert evidence, often unrelated to the real issues, prepared and delivered in a variety of places and in an acceptably partisan way. Unsurprisingly, perhaps, this has created real difficulties in the preparation of parts of this Judgement. It has also led me, very unusually, to be dubious about the reliability of all the expert evidence that has been presented to me. This is emphatically not a case where the Court is able to prefer one expert over another and let that approach dictate the result”.

Comment

The case should serve as a salutary lesson to all experts that they must bear in mind their Part 35 duties and take them seriously to assist the Court. I would suggest that no one wants their name associated with such a judgement.

The Owners and Bareboat Charterers of the vessel “Global Mariner” v the Owners and Bareboat Charterers of the vessel “Atlantic Crusader”

Guidelines for Assessors

[2005] EWHC 380 (Admlty), [2005] 1 Lloyd’s Rep 699 TEDR Volume 11 Issue 1

The Facts

This was a case arising out of a collision between two vessels on the Orinoco River in Venezuela. The dispute was about fault for the collision, and an expert assessor had been appointed by the Court, under CPR r.35.15, to assist.

The Issues

The issue between the parties was fault; but the Court also set out guidelines for the proper approach to collision cases where there is an expert assessor appointed.

The Decision

On the substantive issue the Court found for the Defendant, and that the Atlantic Crusader was not responsible. In short, although the Atlantic Crusader had failed to control her yaw whilst at anchor, that was not causative of the collision, which could have been avoided in any event had the Global Mariner not been negligently handled.

The guidelines set out by Gross J for the future conduct of collision cases are as follows (at 14):

“(i) The range of topics on which advice might be sought from the Assessors should be canvassed with counsel by, at latest, the stage of final submissions;

(ii) Ordinarily, the questions asked of the Assessors by the Judge should not stray outside the range previously discussed with counsel; should they do so, however, there are safeguards contained in iii) and iv) below;

(iii) The questions ultimately put by the Judge, together with the answers given by the assessors, should be disclosed to counsel before any draft judgement is handed down;

(iv) Counsel should thereafter be given the opportunity to make submissions to the Judge, as to whether the advice given by the Assessors should be followed. Ordinarily, any such submissions should be in writing; but if there is good reason for doing so, an application could be made for an oral hearing. The Judge will consider any such submissions before finalising his judgement.

(v) Generally speaking, the interests of proportionality and finality will make it unnecessary to repeat the procedure after the Judge and Assessors have had the opportunity of considering the parties’ submissions and any suggested or further revised questions”

The approach recognises that failure to provide counsel with an opportunity to respond to Assessors’ answers is incompatible with Article 6 of the ECHR (see Owners of the “Bow Spring” v Owners of the “Manzanillo II [2004] EWCA Civ 1007).

The Judge explained that the guidelines aimed to strike the correct balance between transparency on one hand, and the need to curb the cost and delay inherent in post-hearing exchanges on the other.

Comment

An excellent set of guidelines – which interestingly restrain the potential temptation for judges to ask any questions privately of an assessor that happen to occur to them at the time – and instead for inquiries by the judge to be pre-planned with the parties (usually with their respective counsel) and for the ultimate questions and answers to be set out in writing prior to judgement being finalised and with parties having the opportunity to make submissions by their counsel, pre-judgement.

 

Re: S (a child)

Expert should only see documentation relevant to issues

[2008] EWCA Civ 365 TEDR Volume 13 Issue 2

The Facts

The local Authority were seeking a Care Order relating to the fifth child of a couple. The first four children were already the subject of Care Orders.

Accordingly, there was a great deal of material which justified the concerns of the Local Authority and founded its application for a Care Order.

As part of that history there were reports and records relating to possible sexual misconduct by the father containing two cautions; two prosecutions resulting in two acquittals; and various other complaints and assertions which had never been the subject of any criminal or family proceedings.

The application for a Care Order itself was not founded on any allegation of sexual misconduct by the father or any suggestion that he represented a sexual risk to the child.

The Issues

Should the papers relating to the past reports of sexual misconduct go to the expert (an independent social worker) who was to be instructed jointly by the parties?

The Decision

The documents within the Local Authority file included social services records recording the allegations of sexual misconduct and documents expressing opinions as to the validity of those allegations; Police reports and documentation relied upon by the Prosecution in support of the charges for which the father was acquitted.

In answering the question, “what of the documentation ought to be sent to the expert?” the following points were decided:

1. The principles set out in Re: R (Care Disclosure: Nature of Proceedings) [2002] 1 FLR 755 and particularly the passage citing Re: M and R (Child Abuse: Evidence) [1996] 2 FLR 195 are to be extended to apply to the preparation of material conveyed to experts. The principles set out therein are as follows:

a. If the Local Authority decide not to pursue the allegations of sexual abuse and the threshold criteria for a Care Order are met on other grounds, then at the welfare or disposal stage, the Court cannot assess risk on the basis that:

i. There was sexual abuse; or

ii. There was a suspicion that there was sexual abuse.

B. The situation is analogous with a case where such allegations had been made but the Court had been unable to make findings that there had been such abuse;

c. Unless and until the Local Authority embark on proceedings to prove such allegations (and they are proved/admitted) it is not open to the Local Authority to:

i. Advance care plans;

ii. Deal with the family on the basis that they believe the allegations to be true.

2. With that in mind, whilst nothing relevant to the issues should be excluded from the documentation, unnecessary material must be rigorously excluded so as not to unnecessarily inflate the costs incurred by the Expert by burdening him or her with papers that are not significant to the task;

3. Local Authorities should not introduce documentation which may be perceived (perhaps reasonably) as being unfair to the parent in the sense that it is purely prejudicial. The capacity to improve cooperation between parents and Local Authorities should not be unnecessarily prejudiced by presentation of documentation that is regarded by the parents as “below the belt”.

Accordingly, evidence relating to the cautions (which rested on confessions) and relating to the two prosecutions (which were matters of Public record) were relevant. The allegations were irrelevant (although Hughes L.J. Stated that it may be possible for the fact of allegations to be relevant in some cases – irrespective of the truth of them – albeit the details thereof or opinions about them could not be). The opinions expressed about those allegations were agreed to be irrelevant.

Comment

This case concerns a Public law family case where emotions may be running high and unproven allegations can inevitably make matters worse. Whilst allegations (true or not) could be relevant to the issues, if they are not relied upon and/or proved, they will play no part in the future conduct of the case if an Order is made. Therefore, the parties should at least question the relevance of the fact allegations have been made. What is clear is that the contents of those allegations and any opinions that have been expressed about them are irrelevant.

The principle that an Expert should not be burdened with irrelevant documentation is of general application. Consideration of what the instructing party/parties is/are trying to prove and therefore what documentation is relevant to those issues is always essential to avoid unnecessary cost or problems with the recovery of costs at the conclusion of the case.

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