WHEN ONE EXPERT TELLS THE OTHER EXPERT TO “GO BACK TO SCHOOL”: CASES ON CONDUCT AND THE MEETING OF EXPERTS
The case of Hatfield -v- Drax Power Ltd (18/08/2017)* highlights some of the issues that arise in the meeting of experts. The meeting is an important stage in many types of action, however the case law and rules relating to it remain relatively unexplored.
THE JUDGE’S COMMENTS ON THE CLAIMANT’S EXPERT IN HATFIELD
The joint report has some highly “characterful” language from the claimant’s expert (which played a part in his evidence being rejected in full).
48.Professor Vantsevich’s evidence was extraordinary in its presentation and, frankly, shot through with breath taking arrogance. His stance throughout was that he was right and everybody else was wron. That stance appears, first of all, in the joint statement of the experts in the following extracts. Professor Vantsevich “….observes that Dr Walsh and Mr Mutch need to take an undergraduate university course on vehicle dynamics to understand the assumptions and their relevance to the circumstances of the incident.” (B2:889, paragraph 22.214.171.124); “… Strongly recommends the [defence] experts to attend a vehicle dynamics course to understand the subject matter of Professor Vantsevich’s report (B2:890, paragraph 126.96.36.199); “…. Would like to point out that the two [defence] experts also have problems with understanding both the second law and the third law of Newton…(B2:894, paragraph 3.7.2); and “…encourages them to learn the engineering meaning of “possible” and “probable”.” (B2:901, paragraph 3.19.3).
CINTAS -v- RHINO ENTERPRISES
In Cintas -v- Rhino Enterprises  EWHC 1993(CH) . There was some surprising conduct by the instruct expert instructed by the claimant, Mr Pratt. The experts met and prepared a joint report. The claimant was surprised by some of the conduct.
“Mr Pratt signed the second joint report in the morning of Monday 11 May and sent it both to Mr Todd and to the claimant’s solicitors. The claimant’s solicitors were evidently surprised by the report’s contents and Mr Pratt came to suggest that he had signed the wrong version of it. He claimed, moreover, that he had sent Mr Todd an amended version and had assumed that his changes had been incorporated into the final document. It transpires, however, that Mr Pratt had not sent Mr Todd any amendments and that he in fact framed his changes to the report for the first time in the afternoon of
11 May. Those events having come to light, on 15 May the claimant told Mr Pratt that he was no longer instructed.”
The judge gave the claimant permission to instruct another expert. However this expert was not permitted to re-open matters that were already agreed.
“In short, therefore, notwithstanding my general reluctance to vacate trial dates, and notwithstanding the fact that the defendants have done absolutely nothing wrong, I have been persuaded that in the quite exceptional circumstances I should allow the claimant to adduce evidence from a substitute expert. As I have said, that is essentially on the basis that, given Mr Pratt’s improper conduct, it would not be right to insist on the claimant sticking with him and nor would it be in the interests of justice toleave the claimant without any expert evidence at all. On the other hand, as I have also mentioned, I do not think it would be appropriate to allow the new expert evidence to range over all the matters that were originally the subject of dispute. It must rather be limited to the seven plainly disputed allegations and the 24 on which the evidence was said to be inconclusive.”
Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited  EWHC 1763 (TCC)
Here Mr Justice Fraser was highly critical of the behaviour of two expert witnesses called by ICI who misused the joint report process.
“Before turning to each of the experts and how they approached their task, and their evidence overall, it is necessary to make some observations on the contents of the experts’ joint statements. Joint statements were ordered by Coulson J in the usual way, and such documents are important in cases such as this one to agree matters (where any particular area of the expert evidence can be agreed) and to identify the real areas of dispute. In this case, the two statements were dated 20 April 2017 and 2 May 2017.
Paragraphs 16 to 31 of the First Joint Statement were added to that document on the day that it was signed, namely 20 April 2017, by Mr Millwood and Mr Consonni, the two experts for ICI, without any opportunity for discussion or review of those paragraphs with Mr Parry. Those paragraphs were therefore used by the two experts for ICI as a way of bolstering, or adding, to their written evidence, after that written evidence had been served in the usual way in their expert reports which were served earlier. That is not the function of a joint statement by experts.
“[Mr Consonni]’s opinion is also that due to the inadequate quality of the welding produced by MMT and to the exceptionally high repair rates…..it would have been reasonable for ICI to have lost confidence in MMT’s ability to carry out the rectification works to an acceptable standard.”
The repair rates, and whether they were “exceptionally high” or not – MMT’s case is that they were not, and that the sample(s) chosen by ICI were deliberately skewed, a subject which is dealt with in greater detail below – is a disputed matter of fact and Mr Consonni should not have been simply accepting ICI’s case in this respect. Doing so raises real questions about the quality of his evidence. However, regardless of that, whether or not ICI were justified in losing confidence in MMT is a question for the court, and not one upon which expert evidence is admissible. I informed the parties that I considered such evidence inadmissible, and therefore no cross-examination was required on this point, and neither counsel sought to persuade me otherwise. An experts’ joint statement should not be used for such statements, and an independent expert on technical issues should not be giving an opinion on such matters. Entries such as these in the Joint Statements gave the impression that the experts for ICI were anxious to bolster ICI’s case.”
FB -v- Rana & Princes Alexandra Hospital NHS Trust  EWHC 1536
This case was looked at in relation to the witness evidence in an earlier post. The judge observed that the joint statement of the experts contained a number of contradictions.
97. It is immediately apparent that (i) Dr Ninis has allowed herself to “sign up” to a position (“does not allow us to conclude one way or another”) which is inconsistent with a view she expressed just two pages earlier in the Joint Statement, and (ii) Professor Kroll has allowed himself to articulate a somewhat unclear stance – on the one hand, he accepts the generalisation that feverish children with bacteraemia of this type may not appear particularly unwell, and on the other he appears immediately to resile from it and contend, without giving reasons, that the Bachur paper does not assist. In such circumstances, it seems to me that there is an issue which I must resolve on the basis of the oral evidence I have heard. In any event, neither party is bound by the Joint Statement: see CPR r.35.12(5).
IRAQI CIVILIANS -v- MINISTRY OF DEFENCE  EWHC 1254 (QB)
We have also looked at this case earlier. The trial judge gave short shrift to to an attempt by the claimant’s expert to resile from agreements made in the joint report.
“On the day before the trial, however, the claimants’ solicitors gave notice that Mr Dawood “does not agree” with two paragraphs of the joint experts’ report. Those paragraphs contained statements to similar effect to the passage quoted above (although the passage quoted above was not identified as one which Mr Dawood did not agree with). It was not apparent whether Mr Dawood was saying that the joint experts’ report did not accurately represent his view at the time when he signed it or that he had since changed his mind. Nor was any explanation given at that stage of his reasons for disagreeing with the paragraphs in question.”
Garcia -v- Associated Newspapers Ltd  EWHC 3137
The second relevant ruling related to the Defendant’s request to adduce a supplementary statement from Professor Paul Wallace MBBS, MSc, FRCGP, FFPHM (“Professor Wallace”) in which he qualified some of the statements that he had made in the joint statement of the experts. The Claimant objected to this evidence being adduced because there was a joint statement. I permitted this supplementary statement to be served because if Professor Wallace had changed his opinion on relevant matters it was necessary to know that as soon as possible, and providing a supplementary statement would provide the Claimant with a fair opportunity to consider that change of evidence before cross examination, where the change of mind would have been revealed in any event.
The third relevant ruling related to the Claimant’s request to ask Dr Clare Gerada MBE FRCGP FRCPsych FRCP (“Dr Gerada”), who gave expert evidence on behalf of the Claimant, questions about where and how the joint meeting of experts had taken place, and how long the meeting had lasted. This was in circumstances where Professor Wallace had withdrawn his agreement to certain matters set out in the joint statement. The Defendant objected to that, referring to the Protocol on the Instruction of Experts, which made it plain that the contents of discussions couldn’t be referred to at trial. The Claimant also pointed to the protocol which made it clear that the court could direct how the meetings could take place, for example by face to face meeting, or by telephone to reflect issues of proportionality. Some time was taken to look at Phipson on Evidence, Eighteenth Edition which referred to the protocol. I permitted the question to be asked and said I would rule on whether I considered the evidence given to be admissible, and whether it was relevant. In my judgment the evidence given was admissible evidence, if it was relevant. This is because the evidence didn’t disclose the contents of the discussion which was protected by the without prejudice privilege. However I did not consider the evidence to be relevant. The evidence showed that the meetings between experts took place by way of Skype discussions, sometimes with and sometimes without video link, but it did not assist me in determining the relevant contested issues.
A LOOK AT THE RULES
This is dealt with in CPR 35.12.
(1) The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to –
(2) The court may specify the issues which the experts must discuss.
(3) The court may direct that following a discussion between the experts they must prepare a statement for the court setting out those issues on which –
(a) they agree; and
(b) they disagree, with a summary of their reasons for disagreeing.