In a recent case brought before the Technology and Construction Court, Mrs Justice Joanna Smith excluded the defendant’s expert evidence because both the defendant and its experts had committed clear breaches of both a previous court order and the applicable sections of the CPR. In doing so, she provided experts with a clear reminder of their duties to the court and parties with an equally clear reminder of the conduct expected of them when instructing expert witnesses.
Background
On the seventh day of trial in Dana UK Axle Ltd v Freudenberg FST GmbH [2021] EWHC 1413 (TCC), the claimant (Dana) applied to exclude expert evidence obtained by the defendant (FST). Dana’s application was the culmination of several months of wrangling over FST’s expert evidence.
FST filed and served its expert evidence late. Dana stated that it would not object to FST being granted relief from sanctions, on the condition that certain deficiencies in FST’s expert evidence were remedied. Of Dana’s concerns, those most relevant to its subsequent application were:
- None of FST’s experts had properly identified the documents given to them by FST
- FST’s experts had attended site visits at FST’s factories without telling Dana (whose experts were not afforded the same opportunity) and without disclosing a proper record of the visits
- FST’s experts’ reports did not provide proper reference to the source data they had relied on
In an order made at the Pre-Trial Review (the PTR Order), FST was granted relief from sanctions on the condition that the shortcomings in its expert evidence were remedied through filing and service of amended reports. Specifically, the amended reports were required to:
- Include a full list of materials provided to the experts by FST or its solicitors
- Disclose all documents produced by or provided to the experts during the site visits
- Identify the source of the information relied on in support of the opinions given in the reports
Dana considered the amended reports to be in breach of the PTR Order, and asked FST’s experts a number of questions to address the perceived continued shortcomings in their evidence. Dana deemed the answers provided unsatisfactory, so set out its complaints in its opening submissions at trial. One complaint related to the apparent provision of documents by FST to its appointed experts which had seemingly not been provided to Dana or its experts, and which may not have been provided to FST via its instructing solicitors.
Having considered Dana’s submissions, the Judge ordered FST’s solicitors to produce a witness statement which explained the contact, communications and documents between FST and its experts including any notes FST’s experts made in relation to certain information they had been given. The witness statement produced downplayed the significance of the communications between FST and its experts, characterising them as unremarkable. It also stated that FST’s solicitors were in the process of reviewing all correspondence between FST and its experts and would disclose any non-privileged documents discovered to have been exchanged.
Following that review, FST disclosed 175 documents. Dana did not accept that those documents were unremarkable, and applied to have FST’s expert evidence excluded on the grounds that FST was in breach of the PTR Order, the Civil Justice Counsel’s guidance for the instruction of experts in civil claims (the 2014 Guidance) and the CPR.
The application
Mrs Justice Smith held that all experts instructed by FTS had breached the PTR Order to some extent, with two found to have breached the PTR Order in its entirety. Accordingly, FST’s expert evidence was excluded.
The Judge noted that FST’s experts had failed to provide a complete list of materials and information provided to them and that a significant amount of it had not been given to Dana. The documents disclosed by FST’s representatives reflected that FST’s experts had an unsupervised and unrestricted channel of communication with FST’s employees, with one expert seeking and obtaining “guidance and approval” on his report from FST. That these exchanges took place privately and without records being kept indicated the information provided was highly material and FST’s solicitors’ failure to supervise the communications in question was “most unfortunate, to say the least”. It was, in any event, “essential for the Court to understand what information and instructions have been provided to each side’s experts”.
As to the site visits, it was revealed during the course of the trial that two of FST’s experts had not only undertaken site visits without telling Dana’s experts or keeping appropriate records, but had also under-recorded the number of visits in their reports. Mrs Justice Smith deemed this wholly unacceptable and a breach of the PTR Order, the 2014 Guidance and also the TCC Guide, which required experts to “co-operate fully” with each another, in particular “where tests, surveys, investigations, sample gathering or other technical methods of obtaining primary factual evidence are needed”.
Finally, the Judge held that there had been a failure on the part of two of FST’s experts to identify the source of data relied on in support of certain opinions reached. In the case of one expert, this failure led to one aspect of his report giving a misleading impression, and also led to a number of unanswered questions about the report, which the Judge described as “troubling”. The effect of a response by that expert to one question posed to him by Dana’s solicitors suggested that the expert stood by a misleading impression given in his report.
Although not necessary to determine Dana’s application, Mrs Justice Smith also found the Defendants to be in breach of CPR Part 35 and the 2014 Guidance, noting that previous case law on the subject reflected that expert evidence should both actually be and be seen to be, independent. One of the duties of experts, as described in the Practice Direction to CPR Part 35, is to “assist the court by providing objective, unbiased opinions within their expertise” and not to “assume the role of an advocate”. Mrs Justice Smith also noted from previous case law that where experts are not familiar with their duties and the principles governing expert evidence, those principles should be explained to them by their instructing solicitors.
The Judge reminded the parties that the ability to rely on expert witness evidence is “a matter of permission from the Court, not an absolute right and such permission presupposes compliance in all material respects with the rules”. The effect of FST’s experts’ breaches of the PTR Order, the CPR and the 2014 Guidance was to cast doubt on the objectivity of their reports.
Comment
Parties to litigation should be under no illusion as to the role of expert witness evidence. Whether an expert’s report is favourable or damaging to the party instructing that expert is irrelevant. The proper function of expert evidence is not to support one side’s case or the other’s, but to assist the court in its decision making process by providing impartial, objective opinion on the relevant matter. The purpose of the rules and guidance that relate to expert evidence is to safeguard that objectivity and ensure the court has the information required to reach a fair judgment.
The effect of this decision on the outcome of this case remains to be seen, but the additional cost to FST of dealing with Dana’s application will be significant and the lack of any expert evidence may well be detrimental to FST’s case.
Where parties each instruct their own expert, it is vital that both parties’ experts are provided with the same information, to ensure what the Judge in this case referred to as “a level playing field”. Her view was that the effect of FTS’s experts’ conduct was to render “the level playing field abandoned”, thereby placing the proper administration of justice at risk. Given the vital role that expert evidence plays, especially in technical disputes, penalties such as those that were applied in this case, are likely to follow any breach of the applicable rules and guidance.
Alasdair McDowell