LITIGATORS KEEP A CAREFUL LOOK OUT: ITS YOUR DUTY TO MONITOR YOUR EXPERT’S CONDUCT (OTHERWISE ITS YOUR CLIENT THAT SUFFERS)
One specific aspect of the judgment in Mayr & Ors v CMS Cameron McKenna Nabarro Olswang LLP  EWHC 3669 (Comm) that needs emphasising is the duty the case places on a litigant’s lawyers to monitor the conduct of an expert and take positive steps to ensure that the expert complies with the rules if they observe any default.
“The claimants or those advising them were therefore aware of what Professor Kilgallon had done the first time around and should have made it clear to him that this was unacceptable. If they failed to do so this was itself a serious failing.”
The case was looked at in detail in a post earlier today. A claimant was debarred from calling an expert witness because that witness had failed properly to engage with the joint meeting process. The effect of this was, effectively, that large part of the claimant’s (multi-million Euro) case was struck out.
THE JUDGE’S OBSERVATIONS ON THE ROLE OF THE CLAIMANT’S SOLICITOR
After the judge had determined that the claimant be debarred from calling the expert there was an attempt to persuade the judge to change his mind. One of the points made was that the expert was independent of the claimant. The judge observed that the lawyer’s had seen the expert’s conduct and should have told him that this was unaccceptable.
“The second point is that the default is not that of the claimants but of their expert who is not the claimants’ property or their client. While that may be true, there is in fact no evidence to explain whether what happened was the Professor’s own idea or was a course which he was encouraged to adopt by the claimants or their legal representatives. Even assuming the former, however, which is from the claimants’ perspective the most favourable interpretation, this was as I have indicated the second occasion on which this has happened. The claimants or those advising them were therefore aware of what Professor Kilgallon had done the first time around and should have made it clear to him that this was unacceptable. If they failed to do so this was itself a serious failing.”
SO THERE IT IS: THE LEGAL REPRESENTATIVES CANNOT (SAFELY) STAND BY AS PASSIVE OBSERVERS OF THE EXPERT’S CONDUCT
This clearly shows the dangers of the lawyers standing by whilst an expert fails to comply with court orders. It would be prudent to emphasise the importance of this to the expert and at the outset of the case. Telling an expert that they must comply with orders and rules of court can hardly count as interference with the independence of an expert.