ERRANT EVIDENCE AND PHYSICAL EVIDENCE THAT GOES MISSING: CLAIMANT’S EXPERTS FEEL THE HEAT

I am returning for the fifth time to the decision of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited [2017] EWHC 1763 (TCC).  We have seen the judge’s views on the witnesses, the claimant’s disclosure and arguments that counsel’s opinion should be given some kind of evidential value. Equally interesting is the judge’s views on the claimant’s expert witnesses.

“An expert’s role is not to decide issues of fact themselves, and choose what facts to believe and what not to believe.”

“Such destruction of physical evidence in any event, but particularly when the question of the quality of the welds is such a contentious issue between the parties, should not have occurred and I am greatly troubled by it”

THE CASE

The action was part of a long-running dispute about the construction of steelworks in a paint manufacturing plant, in particular the welding carried out by the defendant. The judge considered the expert evidence called by the parties.

KEY POINTS

The key parts of this judgment are:-

• The marked lack of independence on the part of the claimant’s experts.
• The attempts by the claimant’s expert to adduce new and further evidence by adding this to the joint report.
• The fact that important “real” evidence had not been retained by the claimant.
• The judge’s withering conduct of the claimant’s experts approach to the case.

THE JUDGMENT

Expert evidence

1. 1. Each party called expert evidence going to the defects issues, limited to welding and Non-Destructive Testing (or “NDT”), pursuant to the permission granted by Coulson J at the Case Management Conference on 12 February 2016. Due to the overlap of these areas, the parties were given permission to call either one or two experts, depending upon the expertise of each expert. ICI called two experts, Mr Neil Millwood of DNV GL and Mr Marcello Consonni of TWI Ltd. MMT called one, Mr Stephen Parry of Rosen. All three of the experts attended joint meetings and held joint discussions and produced two joint statements.

   2. There is some overlap between welding and NDT, because NDT is one of the methods used to ascertain quality of welding. Due to concerns raised by MMT at the 2^nd Pre-Trial Review about both Mr Millwood and Mr Consonni each covering the same territory in their respective expert reports, I directed ICI to specify which of the experts would be dealing with each of the two areas for which Coulson J had given permission. Mr Millwood was therefore identified as ICI’s expert on NDT and Mr Consonni as the expert on welding defects.

   3. 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.

   4. 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.

   5. Further, paragraph 130 of the First Joint Statement contained the following statement:

“[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.

1. 1. There were some difficulties with the evidence, both physical and documentary, that was made available to the experts and which has had an effect upon their evidence. These difficulties should not have occurred, as will become clear.

The so-called “meeting room” welds

1. 1. This phrase was used to describe welds which were said to be defective, and which were cut out, retained by ICI and placed in one of the meeting rooms on site (hence the name). Mr Brugman said in his written evidence that ICI had kept these defective welds – there were said to be 2500 of them. However, Mr Millwood visited the site on 24 January 2017 and found out that “all the samples plus all the original pipework removed from the hygienic lines had been scrapped”. No explanation was provided for this whatsoever, by anyone. The disposal of this important evidence must have been done by personnel at ICI; ICI’s solicitors are very experienced and will no doubt have been aware of the importance of preserving such evidence, and had been involved since about January 2015 because there is a letter from January 2015 from them to MMT prior to the events of February 2015. I cannot believe that the importance of preserving such evidence was not brought to the attention of those at ICI involved in the litigation.

   2. In cross-examination, Mr Brugman said that the last he had seen of these welds (which would have been sometime in 2015) was they were left in the meeting room. So far as their disappearance is concerned, his evidence was as follows.

“Q: So do you know anything about that? Is that news to you?
A No. New.
Q Okay, so somebody thought that they would get rid of all of that evidence.
A That is very strange because they were in the meeting room, so that is strange.
MR JUSTICE FRASER: Okay. So when you left the project, as far as you were concerned they had been kept? Is that right?
A Yes.”

1. 1. Mr Boerboom said the following when the situation regarding the scrapping of welds was put to him in cross-examination:

“I am quite astonished you bring this fact to me now”.

He left the project at the beginning of 2016. However, he did not leave instructions for their preservation, because:

“I did not leave instructions for something I didn’t expect to happen”.

That last answer rather misses the point. The purpose of such an instruction would be to make sure that something did not happen. However, the answer suggests that Mr Boerboom simply assumed this evidence would be preserved. Regrettably, the evidence was destroyed.

1. 1. Such destruction of physical evidence in any event, but particularly when the question of the quality of the welds is such a contentious issue between the parties, should not have occurred and I am greatly troubled by it. Although non-destructive testing reports of some of these welds survive, these are far inferior to actual inspection of the welds by the experts for the parties. Given that it is ICI’s case that the quality of the welding by MMT was below the necessary standard, the absence of the physical evidence affects the strength of the case advanced by ICI. However, regardless of that, preservation of such evidence was important and it should not have been destroyed.

The spreadsheet of Oceaneering Reports

1. 1. This document was disclosed by ICI, and included a summary of all the reports done on a number of welds for ICI by a testing company referred to as Oceaneering. This had a very large number of weld reports – originally it was said to be 2,500 (an approximate number), but in fact turned out to be nearer 1,800. Whichever number it was, it was obviously in the thousands and was a sizeable sample. However, Mr Millwood, one of ICI’s experts, was not shown this. He was only given access to a far smaller number of weld reports, comprising 412.

   2. When asked about this, and why he had not asked to see the other far larger number of weld reports, Mr Millwood’s evidence in cross examination was as follows:

“Q. So you haven’t seen the spreadsheet with all 2,500 on it?

A. I’m not saying that there is a spreadsheet.

Q. Take it from me, Mr Millwood, if necessary I can get it out —

A. I don’t know.

Q. — there is such a spreadsheet. It was provided in October 2016 when we asked for the proper documents from the other side, and your evidence is you haven’t actually seen any analysis of the 2,500 which would either support or contradict your evidence that the 412 is properly representative or may be representative, is that fair?

A. I’ve not seen any spreadsheet for more welds than the 412.

Q. All right. My Lord, just for the court’s reference —

MR JUSTICE FRASER: Give me the reference later, Mr Mort.

THE WITNESS: My Lord, I’d like to see that, if that is disclosed information.

MR MORT: It is your side’s information, Mr Millwood, and you are your side’s expert on NDT, and you have told the client in a paragraph I cannot immediately find — ah, paragraph 149. Perhaps you can just look at that. This is your report, this is from solicitors Clyde & Co, we’ve had reference before this trial, the total number of welds cut out and radiographed was of the order 2,500. I don’t understand, having been told that or learnt it from an e-mail, why you didn’t say, “Well, don’t we need to expand the sample?”

A. Yeah, I know where you’re trying to go on this but I don’t have that data. So I can only comment on the data that I have.

Q. Mr Millwood, I’m just asking you why didn’t you ask Mr Leadbetter [from Clyde & Co] or one of his colleagues: what about one of these other radiographs, what sort of incidence of defect do they show?

A. I can’t comment on that.

Q. You can. You can explain why you didn’t ask Mr Leadbetter that question. It may be “I didn’t think of it” it may be “I was so keen for ICI to win the litigation, I didn’t want to do anything that will upset the statistics” —

A. No —

Q. — or your answer may be that you had forgotten there were 2,500. So you can answer the question, even if your answer is “I don’t know”.

A. I can answer the question. I did ask for the data for those other welds and it was not forthcoming.

MR JUSTICE FRASER: So you have asked?

A. Indeed I have.

MR JUSTICE FRASER: Yes, all right. When did you ask?

A. I can’t remember the exact date but when I was given the information and I was working on it, November, I think……When I started working on the case, yes, indeed.

MR MORT: So you said to your clients, solicitors instructing you “I’ve only seen some radiograph reports. There are many more. It would be appropriate to look at all of them if only to see consistency or for whatever other purpose” and Clyde said, “They’re not available”? Is that how it went?

A. Whether they said they were not available or not I don’t know, but they were not forthcoming.

Q. Right. Why don’t you mention that in your report, to say, “Well, I asked for these, I was unable to obtain them”?

A. Okay. I thought I had mentioned that, I didn’t use those words exactly. But in that paragraph 149 —

Q. Mr Millwood, in fairness to you —

A. — I say that I’ve pointed out that —

Q. You’re quite right.

A. That’s fairly honest and unbiased, I think……I think it is fairly obvious and unbiased that I have actually pointed out that there may be other welds but I’ve not seen them. So I’m saying is what I’ve done my examination on is the 412, but if you look at the 412, the defect rate comes out at about 38 per cent which is a rather large number.”

1. 1. It was later confirmed by Mr Bowdery QC for ICI that Mr Millwood had indeed asked for this spreadsheet. There are some notable points about this aspect of the case and Mr Millwood’s evidence.

(1) Mr Millwood was using a sample far smaller than the one available.

(2) There is simply no valid reason – and no explanation has been advanced by ICI for this – why an ICI document available in disclosure should not have been provided to ICI’s own expert, regardless of whether he had asked for it or not.

(3) Given Mr Millwood had specifically asked for it, it was even more important that it was provided to him.

(4) Mr Millwood’s initial reaction to the line of questioning above was one of stone-walling, rather than explanation. In response to the question above “I’m just asking you why didn’t you ask Mr Leadbetter or one of his colleagues: what about one of these other radiographs, what sort of incidence of defect do they show?” his first answer was “I can’t comment on that”. Actually, the truthful answer should have been (and eventually turned out to be) that he could indeed comment, and had indeed asked for the information.

(5) Although Mr Millwood referred to the fact that the total number of welds cut out and radiographed was “of the order of 2,500”, he did not refer in his report to the fact that he had asked for this further information to be provided to him. In other words, he glossed over this absence of data, even though he knew it existed and had specifically requested that it be provided.

1. 1. His evidence in cross-examination further on this subject was as follows:

“MR MORT: [Referring to the 412 welds] They are the welds that had been rejected, aren’t they? That’s why you have a sample showing such a high proportion, they’ve been cut out because they’ve been rejected, and they’re radiographed. That’s precisely what has happened.

A. No, I don’t believe that.

Q. Let’s come back to that. What I was putting to you was you said your answer was fair and my question, I will put it once more, was: why did you not record in your report that you had asked for further information but it had not been available? Why is that not in the report?

A. Perhaps that an oversight, but I had pointed out that I am aware of at least a suggestion that other welds had been radiographed but nobody has come to me with any actual evidence saying they had been radiographed.”

1. 1. His answer “I don’t believe that” is not the sort of evidence one would expect from a wholly impartial independent expert witness. Given the existence of documents showing a far larger number was not only referred to in the e mails he had seen (and referred to in paragraph 149 of his report) but was also being put to him by leading counsel as definitely existing in disclosure, and it turned out he had himself asked to see this (and not been provided with it by the solicitors instructing him), there could be no grounds for his “belief” that the welds in the far larger sample would not affect his sampling exercise. An expert’s role is not to decide issues of fact themselves, and choose what facts to believe and what not to believe. Self-evidently, if there were at least a thousand more welds (and nearer to 1,500) in excess of the 412 for which Mr Millwood had seen the test reports, without considering that material, Mr Millwood’s extrapolation/sampling conclusions could potentially be affected. That is a common sense and logical point. Mr Millwood’s dogged attempt to hold on to his original conclusion, as shown by his answer “if you look at the 412, the defect rate comes out at about 38 per cent which is a rather large number” demonstrates in my judgment not only that his expert views have to be scrutinised with much greater than usual care, but that he had lost the degree of independence and impartiality which is rightly expected of experts. Mr Mort QC in his oral closing submissions described him as ” a cheerleader for ICI”. That description is colourful, but does encapsulate the enthusiasm with which Mr Millwood weighed points in ICI’s favour, with those that might count against it.

   2. The experts are agreed that a failure rate of 5% is normal. Here, the situation concerning defects is not straightforward because when the experts were preparing their reports, it was still in issue between the parties as to whether the contract terms required MMT to perform radiography on all the welds. That point was conceded by ICI in its Closing Submissions and has its own separate section in this judgment “The concession on radiography”. The experts are agreed that many of the defects listed in Table 5 of BS:4677 (and observed by testing on some of MMT’s welds carried out in late 2014) could only have been detected by radiography. Both Mr Millwood and Mr Consonni however sought to expand criticisms of MMT rather wider by imposing upon MMT some sort of general and more onerous duty than compliance with the contract terms. For example, Mr Millwood stated in his report at paragraph 12:

“Whilst ICI may not have specified the technical requirements for the pipework fabrication as thoroughly as they should have, ICI was entitled to rely on MMT who were engaged as the experts in pipework fabrication and installation. It was therefore incumbent on MMT to be fully aware of the technical requirements and to manage the weld quality in a professional manner. In my opinion, MMT failed to do so.”

(emphasis added)

1. 1. Such expertise on the part of MMT and consequential reliance thereon by ICI in terms of specifying the technical requirements for the pipework was no part of ICI’s pleaded case. Such an assertion by a welding expert – that, effectively, any deficiencies in the technical specification were to be laid at the door of MMT who was working to the specification, rather than ICI who had provided the detailed specification – goes obviously well outside the scope of expert evidence in any event, given the issues in this case. It might, in other circumstances and in other cases, be possible for an employer to maintain such a case against a contractor but, in my judgment, simply did not and does not arise in this case. Even if it had, such evidence of “reliance” would have required factual evidence from ICI witnesses who were involved at the time contractual relations were formed stating that they had so relied upon MMT, and in the absence of such factual evidence, such a case would fail. There was no contemporaneous factual evidence from ICI to support such an assertion or claim of reliance on MMT for expertise, and it is unclear to me why an independent expert should feel the need to include such hypotheses in his written report. However, even if it were appropriate for it to be dealt with by an expert, there was factual evidence in the case from Mr Wells in his first witness statement in which he stated “I was at that meeting [the Post-Tender Interview] and I recall warning ICI’s representatives about limiting the non-destructive tests to only Dye-Pen, which is why MMT had offered to carry out additional radiographic NDTs (for an additional cost) in the first place”. This evidence was wholly ignored by Mr Millwood, who did not refer to it at all. He simply chose to ignore the existence of important factual evidence on this very point. It was also barely challenged in cross-examination when Mr Wells gave evidence.

   2. Additionally, Mr Millwood’s conclusions were undermined in my judgment by his resolute determination to stick to his percentage figure of 38% for defective welds, failing to take account of the fact that the sample of 412 which he had considered was not representative of all the welds, but was itself already limited to welds that had been identified by ICI as being defective. In other words, the 412 was already a sub-set of a wider total of welds that had been determined to be defective.

   3. Mr Consonni too sought to give evidence on what the contract required MMT to do, and stated in paragraph 5.1.12 of his report that in his expert opinion radiography should have been used by MMT to test the welds. He concluded in paragraph 5.1.16(b)(ii) that the contractual documents required MMT to perform radiography to 10% of the welds. These are not matters of expert opinion. For what it is worth, they are views that are in any event in my judgment wrong, but his evidence on the matter is plainly inadmissible.

   4. When preparing his report, Mr Consonni had no idea how much of the installation had been completed – he accepted that ICI’s contemporaneous documents showed this was nearly 90% – when complaints were raised about quality issues. He characterised the events as a mistake with MMT failing to apply radiography and boroscoping as part of the testing, when these are required by the British Standard. He described this as similar to another project he had been involved in where something was “missed in the project specification”.

   5. He also accepted that the percentages for repair rates provided in his report were not based on projects where the testing regime changed part of the way through the project, which MMT maintain that it effectively did in this case. This is because no radiography was used by MMT prior to October 2014 because (as MMT argued at the time, and at trial) the contract did not require this to be done. That position was ultimately accepted by ICI at the end of the trial; however, rejection of welds for being defective from October 2014 onwards was based on the use of radiographic examination (and the presence of defects that could only be discovered by the use of such radiography) because at that time ICI was arguing that radiography was required under the contract. Mr Consonni’s analysis of percentages of failure were not comparing like with like. Mr Consonni agreed that this would change the defect rate, which is a sensible and obvious point.

   6. The degree to which Mr Consonni was prepared to lay blame at the door of MMT for deficiencies in the contract specification was worded differently to the way Mr Millwood expressed it, but came to the same broad conclusions. Any deficiency was MMT’s fault.

   7. This can be seen in the following extract from his cross-examination:

“Q: But it would be an explanation as to why far higher rates of weld defects were found on my project compared to these little numbers, that the method of NDT was changed. That would be an explanation, would it not?

A. No, I don’t think that would be an explanation. The figures in table 1, which is what we’re referring to, are first of all these are projects which are not directly comparable but are there to give an idea of reject rates in pipe products made partly or entirely of stainless steel. But there are other factors, as I said, which might be causing the reject rates to be higher. So I would not conclude that the reject rate was high because the NDT regime changed. I think there are other measures that should have been put in place, knowing that the NDT regime was inadequate from the start, and this was known by the fabricator [ie MMT] to pick up any other cause of defects, for example problems with the application of the welding procedures. You know, this one example, of chemical analysis of the material which may affect penetration, which is then the cause of — root cause of problems like this lack of penetration or lack of root penetration that have been reported.

Q. If the client says to the contractor, “We don’t want to pay for X-raying”, if that is what they said, it is reasonable to assume, isn’t it, that the employer is not concerned by certain categories of defect. Is that reasonable?

A. I do not think that is reasonable to assume. I — there are specific requirements in, for example, BS4677 which say that table 5, which had been discussed often in these days, applies, and any changes to those difference must be — to those defect acceptance criteria shall be agreed between the parties or specified by the purchaser. In this case the purchaser, ICI, did not specify changes to the acceptance criteria.”

(emphasis added)

1. There are various points of note about this evidence, and about Mr Consonni’s evidence generally. Firstly, he accepted the case ICI was advancing at the time on the contract terms without troubling to consider what if the case on this issue by MMT turned out to be correct. Given this was an issue to be determined by the court, he should not have done so. Secondly, he sought to impose upon MMT liability for any inadequacy in the testing regime agreed by the parties at the time. Thirdly, he was imposing actual or imputed knowledge upon MMT that the testing regime agreed at the time was inadequate. Fourthly, this approach to his evidence (even if acceptable otherwise, which in my judgment it is not) was wholly undermined by ICI’s concession at the end of the trial that radiography was not required by the contract terms. Finally, he completely ignored that the testing regime that was used was expressly agreed by MMT with the ICI personnel at the beginning of the project. These factors again undermine the quality of his expert evidence.

2. Mr Parry, the expert called for MMT and who dealt with both welding quality and NDT, gave his evidence in a sensible and even handed way, and where there were matters that were plainly ones of dispute for the court to resolve – such as the contract terms – he identified this in both his written evidence and the experts’ agreements, and did not choose the side of the party who had instructed him, which was rather in stark contrast to the approach adopted by both Mr Millwood and Mr Consonni. His approach to the issue of sampling, and whether it was valid to extrapolate the findings of the 412 welds across to all the welding done by MMT was far more sensible than the approach of the other two experts. He had only been recently instructed, receiving instructions in March 2017 for a trial that was to commence in May 2017.

3. Mr Parry’s ability to give an opinion on small bore pipework was challenged, due to what was said by Mr Bowdery QC to be a lack of experience or expertise on his part of pipework of particular dimensions. I reject that criticism. Mr Parry’s expertise was in welding, regardless of dimensions of the pipework being welded. He was amply qualified in my judgment to give expert evidence on welding of smallbore pipework as well as larger bore and structural steel.

4. On all matters where the experts for the two parties hold different views, I prefer the evidence of Mr Parry for the reasons expressed above. I find his evidence to be wholly impartial and his independence to be uncompromised. His conclusions were sensible and did not seek to advance the case of the party instructing him. The same, regrettably, could not be said of Mr Millwood and Mr Consonni.