8 August 2018

A flea in the experts’ ear

A recent judgement in the TCC (Imperial Chemical Industries Limited v Merit Merrell Technology Limited) contains some strident criticism of the experts giving evidence in the trial.  In addition, although the Judge (Fraser J) reserves his most direct criticism for the experts, he was clearly unimpressed with the lawyers who had instructed them.  There are therefore lessons both for experts and their instructing solicitors, not least that The Ikarian Reefer remains a key source of authority on the duties of experts.  At paragraphs 236-237, Fraser J said the following:

‘It is also a matter of concern that in a TCC case, with the sums are [sic] stake exceeding 10 million, there should be such a preponderance of partisan experts, all called by the same party. In Bank of Ireland v Watts Group plc [2017] EWHC 1667 (TCC) Coulson J (as he then was) stated the following:

"69. ….In my view, this was yet further evidence of unreasonableness, an expert insisting on making criticisms which the Bank have deliberately chosen not to plead.

70.  The duties of an independent expert are set out in the well-known passages of the judgment in The Ikarian Reefer [2000] 1 WLR 603 [sic].  For the reasons set out above, Mr Vosser did not comply with those duties and I was not confident that he was aware of them or had had them explained. For him, it might be said that The Ikarian Reefer was a ship that passed in the night."

The principles that govern expert evidence must be carefully adhered to, both by the experts themselves, and the legal advisers who instruct them. If experts are unaware of these principles, they must have them explained to them by their instructing solicitors. This applies regardless of the amounts at stake in any particular case, and is a foundation stone of expert evidence. There is a lengthy practice direction to CPR Part 35, Practice Direction 35. Every expert should read it. In order to emphasise this point to experts in future cases, the following points ought to be borne in mind. These do not dilute, or change, the approach in The Ikarian Reefer. They are examples of the application of those principles in practice.

1. Experts of like discipline should have access to the same material. No party should provide its own independent expert with material which is not made available to his or her opposite number.

2. Where there is an issue, or are issues, of fact which are relevant to the opinion of an independent expert on any particular matter upon which they will be giving their opinion, it is not the place of an independent expert to identify which version of the facts they prefer. That is a matter for the court.

3. Experts should not take a partisan stance on interlocutory applications to the court by a particular party (almost invariably the party who has instructed them). This is not to say that a party cannot apply for disclosure of documents which its expert has said he or she requires. However, the CPR provides a comprehensive code and it may be that disclosure is not ordered for reasons of disproportionality. However, if documents are considered to be necessary, and they are not available (for whatever reason), then an opinion in a report can be qualified to that extent.

4. The process of experts meeting under CPR Part 35.12, discussing the case and producing an agreement (where possible) is an important one. It is meant to be a constructive and co-operative process. It is governed by the CPR, which means that the Overriding Objective should be considered to apply. This requires the parties (and their experts) to save expense and deal with the case in a proportionate way.

5. Where late material emerges close to a trial, and if any expert considers that is going to lead to further analysis, consideration or testing, notice of this should be given to that expert's opposite number as soon as possible. Save in exceptional circumstances where it is unavoidable, no expert should produce a further report actually during a trial that takes the opposing party completely by surprise.

6. No expert should allow the necessary adherence to the principles in The Ikarian Reefer to be loosened.

It is to be hoped that expert evidence such as that called by ICI in this case, and also in Bank of Ireland v Watts Group plc, does not become part of a worrying trend in this respect. There are some jurisdictions where partisan expert evidence is the norm. For the avoidance of any doubt, this jurisdiction is not one of them. Not only experts, but the legal advisers who instruct them, should take very careful note of the principles which govern expert evidence.’”

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