(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.


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”.


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.

Aird and Aird v Prime Meridian Limited

The confused case of the meeting of experts and mediation

[2006] EWHC 2338 (TCC) TEDR Volume 12 Issue 1

The Facts

This was a building dispute which went to litigation. In the course of the litigation HHJ Thornton QC made a direction that:

“By 23.9.05 the parties’ architectural experts ….do meet without prejudice and prepare a statement of the issues upon which they are agreed and those upon which they are not agreed with a brief statement of the reasons for the disagreement.”

He also ordered that the case be stayed from 1st October to 31st November 2005 to allow the parties to mediate.

The experts complied with the directions order and by 1st September 2005 had agreed a statement of matters agreed and not agreed. In December 2005 (slightly later than anticipated) there was mediation. The mediation was unsuccessful in resolving the dispute and so the legal proceedings carried on in the New Year of 2006.

The Claimants sought to amend their pleadings in a way which was apparently inconsistent with the views expressed by their expert in the statement. The Defendants opposed the Claimants’ application to amend the pleadings. The Claimants asserted that as the statement was produced “without prejudice” for the mediation, it was a “without prejudice” document and so was privileged. Accordingly the Claimants contended that no reference could be made to its contents in the on-going litigation. The Defendants disagreed and contented that even if it were “without prejudice” and hence privileged, the differences between it and the Claimants new case were “so grotesque” that there had been an abuse of privilege whereby the document should lose its privileged status.

The Issues

The key issue was the application of the without prejudice rule in the above circumstances.

The Decision

The judge confirmed that normally a statement produced by experts under CPR 35.12 (3) would not be without prejudice and could be referred to in litigation.

However, the judge found as a fact that in this particular case “the primary function of the statement was to assist in the mediation”.

He accordingly found that it was and remained privileged and hence its contents could not be referred to in the litigation.

He also found that there was no abuse of privilege in this case which would otherwise cause the without prejudice and hence privileged nature of the document to be lost.


The judge confirmed that normally a statement produced by experts under CPR 35.12 (3) would not be without prejudice and could be referred to in litigation.

However, the judge found as a fact that in this particular case “the primary function of the statement was to assist in the mediation”.

He accordingly found that it was and remained privileged and hence its contents could not be referred to in the litigation.

He also found that there was no abuse of privilege in this case which would otherwise cause the without prejudice and hence privileged nature of the document to be lost.

Experts’ Conferences in Hong Kong

This Fact Sheet is based on the position in Hong Kong for all Civil cases. Appropriate adjustments may need to be made for other courts or jurisdictions, for example in England & Wales there are
similar provisions under the Civil Procedure Rules (CPR).

The document drawn up at the conclusion of the meeting is generally referred to as the ‘Joint Statement’ or ‘Joint Report’. These terms are often used interchangeably as they refer to the same document. In order to reduce possible confusion with the Expert’s Report the phrase ‘Joint Statement’ is used in this document.

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