The Facts & Issues

The appellant appealed to the Court of Appeal from the decision of a Circuit Judge which upheld an appeal from the decision of the District Judge to refuse to permit the Respondent to rely on a supplementary expert report.

While the Applicant coach driver was employed by the Respondent coach company he underwent a left knee replacement procedure and had six months away absence from work to recuperate.

When he returned to work he was given a manual coach to drive, which meant that he had to operate the clutch with his left foot. That caused him pain and he gave up work.

Very shortly before the expiry of the limitation period he issued a claim against C in negligence and/or breach of duty alleging that C should not have required him to drive a manual coach and/or should have undertaken a risk assessment.

He obtained the opinion of a medical expert and the Respondent also instructed an expert.

The initial somewhat tentative opinion of the Applicant’s expert was that the knee problems could have been caused by his return to work in the circumstances outlined above – however, the Joint Statement prepared by him and the Respondent’s expert witness concluded that the Applicant’s work did not cause his knee symptoms and stated that his work was of a type that somebody could routinely expect to go back to following the type of knee replacement he had undergone.

Tight up against the trial date, the Applicant applied to rely on the report of a different expert, given that his original expert’s current views did not support his case.

The District Judge refused his application to rely on fresh expert evidence and took into consideration:

i) the age of the case

ii) late issue of the application to rely on replacement expert evidence

iii) the additional delay

iv) the additional costs and

v) risk of unfairness resulting from permitting the application, and

vi) the fact that his original expert’s opinion had been only tentative in nature ahead of the joint statement of experts being made.

The Applicant then appealed to the Circuit Judge and was successful but the Respondent appealed to the Court of Appeal against the Circuit Judge’s decision.

The Decision

i) The Overriding Duty of an expert witness was to the Court.

ii) In the context of case management it was appropriate for an expert to modify his opinion if he had changed his view as that would save time and costs.

iii) If an expert witness considered that he could not support his client’s case he should say so sooner rather than later.

iv) The court was against “expert shopping”, especially as in this case where the Applicant had had a free choice of expert at the outset.

v) The District Judge, when he refused the application, had considered both parties interests properly. He took into account the delays that had already happened, and the significant further expense of producing further replacement expert evidence. The Circuit Judge had overruled the District Judge’s decision on the ground that the Applicant’s case would otherwise fail and took the view that the District Judge had gone beyond his discretion in refusing the application. However the Court of Appeal disagreed and in allowing the appeal it overturned the Circuit Judge’s decision and reinstated the original decision of the District Judge.

Comment

A hard case for the Applicant and it has to be said the key view contained in the Joint Statement of the experts might seem somewhat surprising on the basic facts outlined. However, it shows that the resources of the Court need to be guarded with care and “expert shopping” particularly when done well into proceedings will generally not be permitted unless there are compelling reasons to do so. It also shows the gravity of a change of view of a party appointed expert at the meeting of experts stage.

It is a case which gives added weight to the right of an expert to change his view and also the danger for a litigant relying too heavily on a tentative view of an expert when that expert then goes into a meeting with the other side’s expert who presumably may hold views that are by no means tentative.

[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.