EXPERTS AND THE OVERRIDING OBJECTIVE: DEFENDANT ALLOWED TO RELY ON EXPERT ALSO USED BY CLAIMANT

In Wheeldon Brothers Waste Limited -v- Millennium  Insurance Company Limited [2017] EWHC 218 (TCC) Mr Justice Coulson allowed the defendant to rely on an expert that had also been instructed by the claimant. The circumstances are unusual and the case needs to be read carefully to understand the factual background.

“…this is a case about instructing an expert pursuant to CPR Part 35. As is well-known, an expert instructed under that rule has an overriding duty to the court … That duty trumps everything else.”

THE CASE

The claimant was seeking to recover £1.5 million in damages from the defendant insurers following a fire at its premises.  The defendant insurer had denied liability.  The day after the fire the defendant had instructed Mr Braund, a forensic expert, to visit the site and carry out post-fire investigations and take photographs. Mr Braund reported to the insurers that the fire was caused by heating/fragments/sparks on a conveyor.  The defendant denied liability under the policy.

The claimant was concerned that the sparks may be the fault of a third party and asked Mr Braund to report on a potential claim against the manufacturer of the conveyor or other third parties. The letter from the claimant appointing Mr Braund stated, expressly, that he was not being appointed under CPR 35.

1. Mr Braund’s subsequent report for the claimant was dated 12 October 2015. He concluded:

“5.3…In my opinion, the evidence suggests strongly that the cause of the fire was ignition of combustible material by frictional heating, hot metal fragments or sparks resulting from failure of the replacement bearing, but there is insufficient evidence to say which of these caused ignition.”

This conclusion was unsurprising since it was precisely the same conclusion that he had reached the previous year. The remainder of the report explained Mr Braund’s opinion “that there was a design, installation or manufacturing defect in the conveyor which ultimately led to the fire.”

THE ISSUE OF PROCEEDINGS

The claimant served Mr Braund’s report with the letter of claim against the defendant insurers.  The claimant objected to the defendant’s proposal to call Mr Braund as an expert witness on the defendant’s behalf.

THE ARGUMENTS

1. In support of the claimant’s position, that Mr Braund could not now act as the defendant’s expert, Mr Quiney QC referred to the well-known passages in the speech of Lord Millett in Prince Jeffri Bolkiah v KPMG [1999] 2 AC 222. In that case, the defendant accountants had previously carried out an extensive amount of work for the claimant personally, including the provision of litigation services, when he was the chairman of the investment agency managing the assets of the Government of Brunei and was the subject of major litigation. As a result, it was not in dispute that they were in possession of information confidential to the claimant. The defendants were then instructed to act as auditors for the agency and the claimant objected to their appointment. It was not a case about the instruction of an expert under CPR Part 35.

2. The House of Lords concluded that, since it had been established that the defendants were in possession of confidential information originating from the claimant, the burden was on them to show that there was no risk that the information would come into the possession of those acting for the other party. Lord Millett said:

“It is in any case difficult to discern any justification in principle for a rule which exposes a former client without his consent to any avoidable risk, however slight, that information which he has imparted in confidence in the course of a fiduciary relationship may come into the possession of a third party and be used to his disadvantage. Where in addition the information in question is not only confidential but also privileged, the case for a strict approach is unanswerable…

I prefer simply to say that the court should intervene unless it is satisfied that there is no risk of disclosure. It goes without saying that the risk must be a real one, and not merely fanciful or theoretical. But it need not be substantial.”

1. Mr Eklund QC referred me to the subsequent decision of Mann J in Meat Corporation of Namibia Limited v Dawn Meats (UK) Limited [2011] EWHC 474 (Ch). That was a case about the appointment of an expert under CPR Part 35. It was admitted that the relevant expert had been given some privileged and confidential information when she had been previously contacted by the claimant, but she had warned the claimant that the defendant was likely to offer her a consultancy which would mean that she could no longer act for the claimant. When that consultancy materialised, the claimant objected to her giving expert evidence on behalf of the defendant.

2. Mann J concluded that the application of the strict test and the strict requirements in Prince Jeffri should not be imposed (see paragraph 31). He pointed out that the facts of that case were striking, in that the accountants had acted like solicitors. In the case before him, he said that there was no evidence of any risk that confidential information would be disclosed by the expert: she had made it plain from the outset that it would not be. He therefore rejected the application to prevent the defendant from relying on their chosen expert.

THE DECISION: OVERRIDING OBJECTIVE APPLIED: DEFENDANT COULD CALL ITS CHOSEN EXPERT

1. In the present case, I have concluded that, as in Dawn Meats, there is no basis for preventing the defendant from relying on Mr Braund, the expert they instructed the day after the fire. My reasons for that view are set out below.
2. First, Mr Braund is in the best possible position to assist the court on many of the background issues surrounding the fire. He attended immediately after the fire and he carried out all the usual and extensive investigations typical of fire experts in this situation. No-one else did that. That he is thought to be the best person to address these issues is demonstrated by the fact that, when the claimant wanted advice as to their possible recovery against third parties following the fire, it was to Mr Braund that they turned. In those circumstances it would be absurd if Mr Braund was prevented from providing the necessary assistance on those issues to the court.
3. It is not yet known whether the claimant will challenge Mr Braund’s opinion as to the cause of the fire: it pleaded no case on causation in the Particulars of Claim and has not yet served a Reply. But I am quite prepared to assume that, as Mr Quiney indicated during argument, the claimant will advance a different case. If it does, then the court will have to consider the issue of causation on the basis of the evidence adduced at trial, and the mere fact that Mr Braund attended the site and can help with the background issues cannot mean that the court will (or is even likely to) adopt his conclusion. Everything remains open. But it would be contrary to the interests of justice for the court’s inquiry into causation to be carried out without the assistance of the fire expert who undertook the contemporaneous investigation.
4. Secondly, I do not see any overlap or conflict between what Mr Braund was instructed to do by the claimant, and what he was instructed to do by the defendant. The latter was and remains solely interested in the cause of the fire. That was the subject on which Mr Braund opined at the outset. The claimant was interested in Mr Braund’s view if, assuming that the cause of the fire was the bearing on the conveyor, there was any claim over against third parties. The defendant has no interest in that issue at all. Thus these were two separate areas of investigation: it was on that basis that the claimant asked for Mr Braund’s assistance in January 2015; it was on that basis that the loss adjusters agreed to the proposal; and it was on that basis that Mr Braund himself also agreed to assist the claimant. The court should not now ignore the clear view that everyone had at the time, that the arrangement did not give rise to any conflict of interest or difficulties of confidentiality.
5. Thirdly, this is a case about instructing an expert pursuant to CPR Part 35. As is well-known, an expert instructed under that rule has an overriding duty to the court (see the well-known passages in the judgment in The Ikarian Reefer [1993] 2 Lloyds Rep 68). That duty trumps everything else. It was not a factor that was present in Prince Jeffri (because that was not a case about expert evidence), but it was a factor relevant to the outcome in Dawn Meats. In my view, the existence of that overriding duty also modifies the strict application of the rule in Prince Jeffri.
6. Fourthly, there is the question of confidential information. That lay at the heart of the decision in Prince Jeffri. In Dawn Meats, confidential information had been provided to the expert but there was no risk it would be passed on. In my view, this case is even more clear-cut: there is no evidence that confidential information was passed to Mr Braund in the first place, and certainly no risk that it would be passed on to the defendant. In his skeleton argument, the highest that Mr Quiney could put it was that, because of the process which led to the production of Mr Braund’s October 2015 report, discussions had taken place which “necessarily involved privileged and confidential matters”. There is no evidence to support that general assertion; nothing to say that any privileged or confidential matters were in fact raised with Mr Braund, much less any which had (or could have had) an impact on his opinion as to the cause of the fire.
7. I am in no doubt at all that what happened in this case was inadvertent. Although, with hindsight, it would have been much better if the claimant had not asked to use Mr Braund, it is plain that, when the request was made and accepted, both sides were acting in good faith. But as I pointed out in argument, if the claimant’s approach were right, it is possible to see how, with other parties in other circumstances, a request by a claimant to use the defendant’s expert, ostensibly for good reason, might later be used as a vehicle to prevent that expert giving evidence at all.
8. For all these reasons, I conclude that there is no proper basis on which the court should deprive the defendant from relying on the expert evidence of Mr Braund. Any other result would be contrary to the over-riding objective. However, since that conclusion is necessarily based on the evidence as it presently exists, I will give the claimant liberty to apply in the unlikely event that some particular issue as to privilege or confidentiality comes to light in the future.