WHEN ONE EXPERT TELLS THE OTHER EXPERT TO “GO BACK TO SCHOOL”: CASES ON CONDUCT AND THE MEETING OF EXPERTS

September 17, 2017 · by · in Civil evidence, Credibility of experts, Expert evidence, 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  3.1.3.2);   “…   Strongly recommends the  [defence]  experts  to  attend  a  vehicle dynamics  course  to  understand the subject matter of Professor Vantsevich’s report (B2:890, paragraph 3.1.5.2); “…. 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).

* Hatfield v Drax Power and SG Transport 17.08.18.judgement).

CINTAS -v- RHINO ENTERPRISES

In Cintas -v- Rhino Enterprises [2015] 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 [2017] 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.

    1. “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.
    2. 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.
    3. 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.”

 

FB -v- Rana & Princes Alexandra Hospital NHS Trust [2015] 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 [2015] 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 [2014] EWHC 3137

  1. 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.
  2. 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.
Discussions between experts
35.12

(1) The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to –

(a) identify and discuss the expert issues in the proceedings; and
(b) where possible, reach an agreed opinion on those issues.

(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.

(4) The content of the discussion between the experts shall not be referred to at the trial unless the parties agree.
(5) Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.

 THE PRACTICE DIRECTION (PD 35).

Discussions between experts
9.1  Unless directed by the court discussions between experts are not mandatory. Parties must consider, with their experts, at an early stage, whether there is likely to be any useful purpose in holding an experts’ discussion and if so when.
9.2  The purpose of discussions between experts is not for experts to settle cases but to agree and narrow issues and in particular to identify:
(i) the extent of the agreement between them;
(ii) the points of and short reasons for any disagreement;
(iii) action, if any, which may be taken to resolve any outstanding points of disagreement; and
(iv) any further material issues not raised and the extent to which these issues are agreed.
9.3  Where the experts are to meet, the parties must discuss and if possible agree whether an agenda is necessary, and if so attempt to agree one that helps the experts to focus on the issues which need to be discussed. The agenda must not be in the form of leading questions or hostile in tone.
9.4  Unless ordered by the court, or agreed by all parties, and the experts, neither the parties nor their legal representatives may attend experts discussions.
9.5  If the legal representatives do attend –
(i) they should not normally intervene in the discussion, except to answer questions put to them by the experts or to advise on the law; and
(ii) the experts may if they so wish hold part of their discussions in the absence of the legal representatives.
9.6  A statement must be prepared by the experts dealing with paragraphs 9.2(i) – (iv) above. Individual copies of the statements must be signed by the experts at the conclusion of the discussion, or as soon thereafter as practicable, and in any event within 7 days. Copies of the statements must be provided to the parties no later than 14 days after signing.
9.7  Experts must give their own opinions to assist the court and do not require the authority of the parties to sign a joint statement.
9.8  If an expert significantly alters an opinion, the joint statement must include a note or addendum by that expert explaining the change of opinion.

THE CIVIL JUSTICE COUNCIL GUIDANCEDiscussions between experts 68.

The court has the power to direct discussions between experts for the purposes set out in the Rules (CPR 35.12). Parties may also agree that discussions take place between their experts at any stage.
69. The purpose of discussions between experts should be, wherever possible, to: a. identify and discuss the expert issues in the proceedings; b. reach agreed opinions on those issues, and, if that is not possible, narrow the issues; c. identify those issues on which they agree and disagree and summarise their reasons for disagreement on any issue; and d. identify what action, if any, may be taken to resolve any of the outstanding issues between the parties. They are not to seek to settle the proceedings.
70. Where single joint experts have been instructed but parties have, with the permission of the court, instructed their own additional Part 35 experts, there may, if the court so orders or the parties agree, be discussions between the single joint experts and the additional Part 35 experts. Such discussions should be confined to those matters within the remit of the additional Part 35 experts or as ordered by the court.
71. Where there is sequential exchange of expert reports, with the defendant’s expert’s report prepared in accordance with the guidance at paragraph 61 above, the joint statement should focus upon the areas of disagreement, save for the need for the claimant’s expert to consider and respond to material, information and commentary included within the defendant’s expert’s report.
72. Arrangements for discussions between experts should be proportionate to the value of cases. In small claims and fast-tracks cases there should not normally be face to face meetings between experts: telephone discussion or an exchange of letters should usually suffice. In multi-track cases discussion may be face to face but the practicalities or the proportionality principle may require discussions to be by telephone or video-conference.
73. In multi-track cases the parties, their lawyers and experts should cooperate to produce an agenda for any discussion between experts, although primary responsibility for preparation of the agenda should normally lie with the parties’ solicitors.
74. The agenda should indicate what has been agreed and summarise concisely matters that are in dispute. It is often helpful to include questions to be answered by the experts. If agreement cannot be reached promptly or a party is unrepresented, the court may give directions for the drawing up of the agenda. The agenda should be circulated to experts and those instructing them to allow sufficient time for the experts to prepare for the discussion.
75. Those instructing experts must not instruct experts to avoid reaching agreement (or to defer doing so) on any matter within the experts’ competence. Experts are not permitted to accept such instructions.
76. The content of discussions between experts should not be referred to at trial unless the parties agree (CPR 35.12(4)). It is good practice for any such agreement to be in writing.
77. At the conclusion of any discussion between experts, a joint statement should be prepared setting out: a. issues that have been agreed and the basis of that agreement; b. issues that have not been agreed and the basis of the disagreement; c. any further issues that have arisen that were not included in the original agenda for discussion; and d. a record of further action, if any, to be taken or recommended, including if appropriate a further discussion between experts.
78. The joint statement should include a brief re-statement that the experts recognise their duties (or a cross-reference to the relevant statements in their respective reports). The joint statement should also include an express statement that the experts have not been instructed to avoid reaching agreement (or otherwise defer from doing so) on any matter within the experts’ competence.
79. The joint statement should be agreed and signed by all the parties to the discussion as soon as practicable.
80. Agreements between experts during discussions do not bind the parties unless the parties expressly agree to be bound (CPR 35.12(5)). However, parties should give careful consideration before refusing to be bound by such an agreement and be able to explain their refusal should it become relevant to the issue of costs.
81. Since April 2013 the court has had the power to order at any stage that experts of like disciplines give their evidence at trial concurrently, not sequentially with their party’s evidence as has been the norm hitherto: PD 35 paragraphs 11.1-11.4 (this is often known as “hot–tubbing”). The experts will then be questioned together, firstly by the judge based upon disagreements in the joint statement, and then by the parties’ advocates. Concurrent evidence can save time and costs, and assist the judge in assessing the difference of views between experts. Experts need to be told in advance of the trial if the court has made an order for concurrent evidence.
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