EXPERTS, LAWYERS & THE JOINT REPORT (II): NO SUBSTANTIVE INPUT FROM LAWYERS PLEASE

This is the second case today looking at observations made in cases this week in relation to the joint meeting of experts. In BDW Trading Ltd v Integral Geotechnique (Wales) Ltd [2018] EWHC 1915 (TCC) HH Honour Judge Stephen Davies stated that the input of lawyers into joint reports should be minimal and lawyers should certainly not be involved with the substantive content.

THE CASE

The claimants brought an action for damages, alleging the defendant failed to give proper advice in relation to asbestos contaminating a site the claimant purchased.

THE JUDGE’S COMMENTS ON THE JOINT REPORTS

The judge was considering the role of each witness and expert. He commented on the procedure adopted by one of the experts.
    1. Dr David Tonks. Dr Tonks is a consulting engineer with a specialism in geotechnical engineering and with considerable experience in acting as an expert witness. An issue arose in his evidence when he was asked about the preparation of the joint statement of the experts. He accepted that he had sent the first draft of the joint statement to IGL’s solicitors for their comments and, having received feedback, made some changes to that draft as a result.
    2. Mr Mort rightly complained that it was quite inappropriate for independent experts to seek input from their client’s solicitors into the substantive content of their joint statement or, for that matter, for the solicitors either to ask an expert to do so or to provide input if asked, save in the limited circumstances referred to in paragraph 13.6.3 of the TCC Guide, which states that:

“Whilst the parties’ legal advisers may assist in identifying issues which the statement should address, those legal advisers must not be involved in either negotiating or drafting the experts’ joint statement.

Legal advisers should only invite the experts to consider amending any draft joint statement in exceptional circumstances where there are serious concerns that the court may misunderstand or be misled by the terms of that joint statement.

Any such concerns should be raised with all experts involved in the joint statement.”

This is consistent with the Practice Direction to Part 35, which at paragraph 9 makes clear that:
(1) The role of the legal representatives in expert discussions is limited to agreeing an agenda where necessary and, whilst they may attend the discussions if ordered or agreed, they must not intervene and may only answer questions or advise on the law.
(2) Experts do not require the authority of the parties to sign a statement, which should be done at the conclusion of the discussion or as soon thereafter as practicable and in any event within 7 days.
  1. What happened here was, I agree, a serious transgression and it is important that all experts and all legal advisers should understand what is and what is not permissible as regards the preparation of joint statements. To be clear, it appears to me that the TCC Guide envisages that an expert may if necessary provide a copy of the draft joint statement to the solicitors, otherwise it would not be possible for them to intervene in the exceptional circumstances identified. However, the expert should not ask the solicitors for their general comments or suggestions on the content of the draft joint statement and the solicitors should not make any comments or suggestions save to both experts in the very limited circumstances identified in the TCC Guide. That is consistent with the fact that any agreement between experts does not bind the parties unless they expressly agree to be so bound (see Part 35.12(5)). There may be cases, which should be exceptional, where a party or its legal representatives are concerned, having seen the statement, that the experts’ views as stated in the joint statement may have been infected by some material misunderstanding of law or fact. If so, then there is no reason in my view why that should not be drawn to the attention of the experts so that they may have the opportunity to consider the point before trial. That however will be done in the open so that everyone, including the trial judge if the case proceeds to trial, can see what has happened and, if appropriate, firmly discourage any attempt by a party dissatisfied with the content of the joint statement to seek to re-open the discussion by this means.
  2. However, it was plain to me having heard him give evidence that Dr Tonks was genuinely unaware that his conduct in this respect was inappropriate. Furthermore, I am quite satisfied that there is no basis for considering that he had modified in any significant way the substance of his opinion as discussed with Mr Waite as a result of his contact with and feedback from IGL’s solicitors. My only qualification to that is that I am satisfied that he added to his opinion in section 14 of the joint statement, in relation to the specific issue as to whether or not the investigation undertaken by IGL was a “main investigation” as defined by the relevant Code of Practice (as to which see below), as a result of feedback from IGL’s solicitors.
  3. Nonetheless overall Dr Tonks’ evidence seemed to me in the main to be balanced and realistic and I tend to accept his views. In closing submissions Mr Mort contended that Dr Tonks came across as a “hired gun”, prepared to argue the case and to change his opinion based on what Mr Pritchard said or based on input from IGL’s solicitors. He disclaimed however any suggestion that Dr Tonks was not an independent expert witness.
  4. I accept the criticism, referred to above, that Dr Tonks appeared to change his view as to whether or not IGL’s investigation was a “main investigation”. However that point did seem to me to be quite a difficult point of construction of an opaque document and, as it transpires, I agree with the interpretation he gave in evidence. Otherwise I do not accept the criticisms made, whilst accepting that Dr Tonks did come across as an experienced and persuasive expert and reminding myself that a judge must be astute to consider the substance of the evidence rather than the manner of its presentation. Having heard his evidence and having re-read the transcript of his evidence I am quite satisfied that he did not cross the line into inappropriate advocacy or partisan evidence.