It is a fundamental principle of Part 35 of the Civil Procedure Rules (CPR) that experts must be objective and their evidence must not be contaminated or influenced by the party instructing them.
The recent case of Patricia Andrews and Ors v Kronospan Limited [2022] highlights the dangers of not following these rules. Frequent discussions between the Claimants’ solicitors and the Claimants’ expert regarding the contents of the joint statement of experts went too far. The High Court concluded the expert was not objective or independent, and it revoked the Claimants’ right to rely on the expert evidence.
Patricia Andrews and Ors v Kronospan Limited [2022] EHWC 479 (QB)
In Patricia Andrews the High Court was asked to consider whether the Claimants’ expert had breached CPR Part 35 when preparing the joint statement of experts.
CPR 35PD.9 governs discussions between experts and paragraph 9.4 provides:
“Unless ordered by the court or agreed by the parties, and the experts, neither the parties nor their legal representatives may attend experts discussions: and
Paragraph 9.7 provides:
“Experts must give their own opinions to assist the court and do not require the authority of the parties to sign a joint statement.”
Patricia Andrews involved a group action in which a number of Claimants alleged the Defendants were liable to them in nuisance caused by dust dispersion from the Defendants wood processing and manufacturing plant.
The Court gave permission for each party to rely upon the evidence of experts in dust dispersion and dust analysis. Reports were exchanged and joint discussions between the parties’ appointed experts followed.
It became apparent to the Defendants that there had been contact between the Claimants and their expert during the period of the joint statement discussions. Those communications consisted of the Claimants’ expert providing the Claimants’ solicitors with various iterations of the working draft of the joint statement, and the Claimants’ solicitors replying to their expert with comments. There were also email and telephone exchanges between the expert and the Claimants’ solicitors in which the progress, and to some extent, the content of the joint discussions were shared with the Claimants’ solicitors.
As a result of these transgressions, the Defendants applied to the court for an order revoking the Claimants’ permission to rely on their expert in dust analysis on the basis that he was not truly independent but instead was acting as an advocate of the Claimants.
Some of the comments by the Claimants solicitors on the various draft statements were in relation to typographical errors, or queries where there was lack of clarity, but the Claimants’ solicitors accepted that some 16 comments related to “advice and suggestions as to content”. However, they asserted that the expert had only changed his position once as a result of communications and that it would be disproportionate not to allow the Claimants to rely on their expert evidence.
Decision
The Senior Master concluded that the transgressions by the Claimants expert and their solicitors which had occurred on numerous occasions over a period of many months, were such that the court had no confidence in the expert’s ability to act independently and in accordance with his obligations as an expert witness. She commented that:
“it is important that the integrity of the expert discussion process is preserved so that the court, and the public, can have confidence that the courts decisions are made on the basis of objective evidence. This is particularly important where, as here, the expert evidence is of a very technical nature so that the court is heavily reliant on the expert evidence being untainted by subjective considerations”.
Accordingly, she considered it was appropriate to revoke the expert’s permission to act, irrespective of the delay which would be caused and the inevitable costs ramifications.
To reinforce her concerns, the Senior Master went on to refer to the commentary in the White Book Vol 1 at 35.12.2 which provides:
“Joint statements should aid the understanding of the key issues and each expert’s position on those issues. It should set out the issues on which they agree, and on which they disagree…..They should be concise and both parties and experts should ensure that they do not take on the quality of a long and repetitive pleading…
An effective joint statement is best achieved by parties agreeing a single agenda for the experts discussions, see Saunders v Central Manchester University Hospitals NHS Foundation Trust [2018] EWHC 343 (QB)”.
Dana UK Axle Ltd v Freudenberg FST [2021]
Patricia Andrews follows a growing line of authorities where the courts have raised concerns about the loss of impartiality of expert witnesses.
In our July 2021 edition of Accountancy News, we commented upon a decision in Dana UK Axle Limited v Freudenberg FST [2021] where the court excluded the defendant’s technical expert evidence on the seventh day of trial due to “serious and unexplained” breaches of the pre-trial review order, in addition to breaches of CPR Part 35, PD 35 and the related 2014 Guidance for the Instruction of Experts in Civil Claims (2014 Guidance).
In Dana, Mrs Justice Joanna Smith stressed that all experts and legal advisers should understand what is and what is not permissible in the preparation of joint statements, and whilst experts, can, if necessary, provide a copy of a draft joint statement to their solicitors, the expert should not ask the solicitors for general comments or suggestions on its content. This is consistent with the fact that any agreement between experts does not bind the parties unless they expressly agree to be bound (Part 35.12 (5)).
She noted that there may be exceptional cases where, after a party or its representatives have seen the joint statement, they have concerns that the views expressed therein may have been subject to a material misunderstanding of law or fact. In her view, these concerns should be raised with the experts in open communications so they can consider the point before trial, and everyone, including the trial judge, can see what has happened.
Summary
Any challenge to the independence and objectivity of an expert will inevitably be fact sensitive but this latest decision affirms the court’s position on impartiality and highlights the danger if an expert witness strays and allows their evidence to be crafted by those instructing them.
The best advice for accountancy experts is: ensure full compliance with the rules. If an expert has any concerns about maintaining objectivity or impartiality, then they must raise these concerns with those instructing them at the earliest opportunity and, if appropriate, decline the instruction if they feel these important principles are being compromised.
