In Blackpool Borough Council v Volkerfitzpatrick Limited [2020] the Court refused the Defendant’s application to strike out the evidence of two of the Claimant’s experts, and further refused to strike out the Claimant’s claim in relation to the new tram depot in Blackpool.

Background

The independence, or lack thereof, of experts has been considered twice in the last two years with notable comments made by the Court in:

• Bank of Ireland v Watts Group plc [2017] – the Claimant’s expert was deemed to not be properly independent as the Claimant were his principal client and he represented them in multiple disputes arising out of the 2008-2009 financial crash.

• Imperial Chemical Industries Ltd v Merritt Merrol Technology Ltd [2018] – the Claimant’s expert was criticised for his partisan nature and deemed to have not provided any impartial assistance to the Court for amongst other things, producing two witness statements in support of an interlocutory application, and taking a position on issues of fact & law which were not matters for his opinion.

CPR Part 35 is clear that an expert’s overriding duty is to the Court and such duty overrides any obligation to the party who instructs them or pays them (CPR 35.3), as was first outlined in The Ikarian Reefer [1993].

CPR Part 35 further states that when a single joint expert is appointed, any instructions given to that expert by one party, must be sent to the other relevant parties (CPR 35.8(2)). The Court of Appeal has gone further, in Peet v Mid Kent Healthcare NHS Trust [2002], to state that when a single joint expert is instructed one party should never be permitted access to the single joint expert without the consent of the other party.

Blackpool Borough Council

Volkerfitzpatrick Limited (“VFL”) made an application to, firstly, strike out the expert evidence of the Claimant’s Structural Engineering Expert and the Claimant’s Corrosion Expert on the basis that they could not be considered properly independent.

VFL also applied to strike out the Claimant’s claim as a whole on the basis that, without expert evidence, the Claimant could not hope to succeed with its’ claims.

The application was heard on 12 February 2020 with the trial of the underlying claim due to commence on 24 February 2020.

The application argued that Socotec, the jointly appointed testing house, should be considered a single joint expert under CPR Part 35 and that both experts conduct with Socotec evidenced a lack of independence. This conduct included:

• directly contacting Socotec without the knowledge of the other parties’ experts;
• procuring additional testing from Socotec on behalf of the Claimant without permission and without reference to the other experts;
• directing Socotec how to undertake its testing;
• directing Socotec to not disclose the existence of the additional testing to the other parties.

The Defendant further contended that the Directions order made it clear that all inspections and tests ought to be undertaken on a joint basis and any separate instructions should not be undertaken.

In refusing the application, the Court found that Socotec should not be considered a single joint expert, in part because there was no direction for it to act as such, and their role was not so analogous to that of a single joint expert that it should be considered as such, therefore Peet v Mid Kent Healthcare NHS Trust [2002] and a ban on unilateral contact with the testing house did not apply.

Accordingly, the Claimant’s experts were permitted to make direct contact with Socotec in relation to additional testing, and did not have to obtain permission to do so from the other parties, although the other parties should at least have been made aware.

The Court further found that neither the experts nor the Claimant’s legal advisers could have be considered to have breached the Directions order by unilaterally instructing Socotec to undertake further testing.

The lessons to be learned

The alleged level of unilateral contact between the Claimant’s experts and the testing house in this case would cause alarm for many parties. In light of this Judgment, parties would be well advised to be proactive and seek to agree conditions when instructing joint testing houses to guard against any perceived undue influence being exercised by a party, their legal advisers or their experts.

As is evident from the submissions made in this case, construction claims often stand or fall on the strength of the expert evidence: it is important to get it right.