EXPERT’S CONDUCT DID NOT LEAD TO EVIDENCE BEING DISALLOWED: CLAIMANT’S CASE REMAINS ON TRACK

In Blackpool Borough Council v Volkerfitzpatrick Ltd and Range Roofing and Cladding Ltd & Ors [2020] EWHC 387 (TCC)   HHJ Davies (sitting as a High Court judge) carried out a detailed consideration of the conduct of an expert when considering, and rejecting, an application that expert evidence be disallowed.

 

THE CASE

The claimant brought an action for some £6 million relating to construction of a tram depot.  There are are a number of defendants and third and fourth party proceedings.  The court made an order permitting the parties to rely on the evidence of expert witnesses.   The experts met and agreed that it would be preferable for an independent third party to carry out inspection and testing work.  The claimant’s expert, Mr Davis, took the lead in obtaining quotations from a number of companies.  A company was agreed on, with the costs to be shared equally between the parties.  The claimant’s expert took the lead in liaising with the testing company. Also, unknown to the other parties, other testing took place on the sole instruction of the claimant.

THE DEFENDANTS’ APPLICATIONS

The defendant made an application that the claimant not be allowed to rely on expert evidence and that, consequently, the action be struck out.  The judgment contains a detailed consideration of the role of the expert.  The judge rejected the defendants’ main arguments and found that the claimant’s experts were not in breach of their duties to the court.

THE APPOINTMENT OF A TESTING COMPANY WAS NOT THE APPOINTMENT OF A JOINT EXPERT

The defendant argued that the company appointed to do the testing was in a position akin to a joint expert. The judge rejected that  argument.

  1. It is quite clear to me that it is simply impossible to view this as either the instruction of a single joint expert or something equivalent in substance to such an instruction. Not only was that never suggested by anyone at the time but the substance of the joint statement itself makes clear, as one would expect, that Socotec was being instructed purely and simply to undertake the mechanical processes stipulated by the joint statement, which did not involve it in exercising any expert judgment or offering any opinions on the results. Whilst undertaking the inspection and testing was obviously a skilled process there is no basis in my view for any suggestion that the process as a whole could properly be regarded as being of an expert nature.

THE CLAIMANT’S EXPERT TOOK THE LEAD

The claimant’s expert, thereafter in arranging the inspection by the testing expert. The judge rejected any argument of the claimant’s expert on this point.

  1. It is common ground that Mr Davis then liaised with Socotec in terms of making the necessary arrangements for the inspection and testing procedures to be undertaken over a period of some days in July 2019 in the presence of such of the experts as wished to be present. Mr Davis describes this as entirely normal and his liaison as either purely administrative which did not need to be copied to the other experts or, where more substantive input was required, was notified to the other experts. It appears that subsequent to the inspection and testing Mr Davis was also involved in raising certain queries with Socotec as to the draft results it produced until a final draft version of the results was provided in early September 2019.
  2. Criticism is made of Mr Davis on the basis that he did not share his correspondence with Socotec with the other experts and, it is submitted, some of his correspondence went beyond the merely administrative and was such as to seek to control the process in a wholly inappropriate way. I entirely reject the suggestion that in his dealings with Socotec in relation to these joint instructions Mr Davis acted in such a way as to compromise his independence. It is sufficient to refer to some of what was identified as being the most egregious examples.
  3. On 12 July 2019 Mr Davis emailed Socotec dealing with various matters relevant to the forthcoming inspection, stating that he would not be physically present but would be available by telephone, and concluding in these terms: “I will write separately to let you know which experts will be present with the broad indication of their movements. The experts are likely to take an interest in your work, but if they start trying to give you instructions, please refer this to me before changing anything”. It is said that it was wholly improper to write to Socotec in these terms, since it was not Mr Davis’ role to instruct Socotec as to how to respond to requests made by the other experts during the course of the inspections, especially since they were not copied into the email. Whilst I agree that it would have read better had Mr Davis not adopted quite such a dictatorial tone and also that he ought to have copied in the other experts to that email to ensure their agreement, nonetheless it is clear to me that his only intent in writing in those terms was to seek to ensure that the provisions of paragraph 16 of the joint statement were adhered to, so as to avoid the performance of the agreed inspection and testing works being thrown off course by individual experts making unilateral requests of Socotec during the course of the inspection process to vary the agreed works or to undertake further works not already agreed, without that being the subject of further discussion and agreement. There can be no basis in my judgment for a suggestion that this shows that he was seeking to exert improper control over the inspection and testing processes.
  4. Complaint is also made that the queries raised by Mr Davis involved him interfering in the substance of the results produced by Socotec. Reference is made to emails dated 12, 14 and 29 August 2019 in which he asked certain questions of Socotec in relation to their results. However, it is clear to me that all that he was seeking to do was to ensure that the results were clearly and consistently produced and that they addressed all of the relevant matters which Socotec had been asked to deal with, rather than seeking in any way to interfere with the substance of the results. Complaint is also made about an exchange of emails in late October 2019 where, it is said, Mr Davis inappropriately sought to interfere on behalf of the claimant with a request made of Socotec by one of the corrosion experts to be provided with certain samples for further inspections. However, in my view all that this correspondence shows is that Mr Davis was seeking to reach a sensible agreement in relation to the practical issue of ensuring the physical security and integrity of the samples.
  5. I cannot help but observe that in my view the readiness of the defendant and the other parties to read a sinister motive into these exchanges, which in my view reveal nothing more than Mr Davis taking steps to ensure that the inspection and testing procedure was undertaken in an efficient and an effective manner, is unattractive and reveals at best a careless and at worst a wilful misreading of these exchanges. Whilst it is apparent that the other corrosion experts and the defendant’s and the other parties’ solicitors were aggrieved at what they perceived as being unwarranted interference by Mr Davis in matters which they believed ought to have been dealt with solely by the corrosion experts, and whilst it is also apparent that Mr Davis may have contributed to that sense of grievance by being rather to ready to seek to assert control over the procedure, there is nonetheless a very real distinction to be drawn between conduct of that kind, however aggravating it may have been perceived, and conduct seeking to secure an unfair advantage for the client in relation to this testing process, which this plainly was not.

FURTHER CRITICISM OF THE EXPERT

The defendant further criticised the claimant on the grounds that the expert sent separate, distinct, instructions to the testing company.  The judge considered that there was some grounds for criticism, but this did not indicate a breach of the expert’s duty to the court or a lack of independence.

  1. Having considered this evidence and the submissions made it is important in my view to give separate consideration to whether or not what happened was in accordance with good or best practice and whether or not the role which Mr Davis and Dr Clarke, considered separately both from the claimant and from the claimant’s legal advisers and indeed from each other, played in what happened is such as to satisfy me that their expert evidence in its entirety should be ruled inadmissible on the basis that they have breached in a very serious manner the obligations imposed upon Part 35 experts to which I have already referred.
  2. The first question is whether or not separate instructions ought not to have been given to Socotec in any circumstances.
  3. As to that, as I have already said in my view an argument founded on the basis that Socotec was in the position of a single joint expert or in a position so closely analogous thereto so that the Peet principle applied, is misconceived, given the role which Socotec actually played.
  4. However, the defendant and other parties submit that even so the terms of the order made at the first case management conference and the obvious rationale for that order should have made it clear to Mr Davis and Dr Clarke that any and all inspections and tests should be undertaken on a joint basis so that it was quite simply and obviously wrong for separate inspections and tests to be undertaken.
  5. I agree that the order clearly provided for joint inspections and tests to be agreed and that if agreement could not be reached the court would decide, rather than the parties being free to undertake separate inspections and tests on a unilateral basis. One obvious purpose behind these provisions of the order was to avoid the risk of dispute arising from disagreement as to whether individual testing was appropriately specified and/or undertaken. I also agree that although the order did not expressly deal with the position so far as any further or supplemental inspections and tests were concerned it would have been expected that a similar procedure should also apply in that respect as well unless there was good reason not to do so. Indeed, it is apparent from the reasons given by Mr Grocott and Mr Davis for the decision to instruct Socotec separately that they understood that this was so. Their evidence is to the effect that there was good reason to depart from that starting point.
  6. The defendant and other parties suggest that there is no credible basis for that explanation. I agree that, considered objectively, there was no sufficient basis for that unilateral decision at the time it was made. I accept that the claimant and its advisers were concerned, understandably, that time was tight and that there had already been considerable slippage. I accept that they were entitled to be concerned that it would take far longer to attempt to achieve agreement and further joint instructions than to give separate instructions. I am also prepared to accept, given my involvement in managing this case from which it is apparent that the relationship between the claimant’s solicitors and the solicitors for the defendant and the other parties (and, I infer, the relationship between the respective corrosion and structural engineering experts) has not always been harmonious, that the claimant would have had a justifiable concern that the defendant and other parties might well have attempted to create obstacles for purely tactical reasons.
  7. Nonetheless, it seems to me that the claimant ought at least to have made some attempt to do so before proceeding unilaterally. In my view the proper course would have been to notify the other parties that the claimant wished to have these further tests undertaken, explaining why, and that it would prefer to do so on a continued joint basis if agreement could be reached within a specified short but reasonable timeframe, failing which it would apply to the court on an urgent basis for permission to instruct Socotec unilaterally. I appreciate that parties are, sometimes for good reason, concerned that they cannot always have urgent applications put before and decided by a judge as soon as they would wish. However, it is the practice of the TCC to deal with genuinely urgent matters on an expedited basis and there is no reason to think that this would not have happened here.
  8. However, it is also clear in my judgment that the decision to instruct Socotec unilaterally was not a deliberate breach of a clearly expressed term of that order. It cannot be said in my view that it must have been or ought to have been obvious to the claimant and its legal advisers that unilateral instruction of Socotec was so plainly contrary to the express terms of that order that it could not have been justified in any circumstances. To state the obvious, a deliberate decision to breach a court order in such circumstances would have been a very high risk strategy, since a likely consequence would have been that the court would simply accede to an application by the defendant to debar the claimant from relying on the further results.
  9. Still less can it be said in my view that it must have been or ought to have been apparent to Mr Davis or Dr Clarke as expert witnesses that it was plainly contrary to their duties as Part 35 experts to be involved in any way in that decision. Despite their experience as Part 35 experts it would not be right to treat Mr Davis or Dr Clarke as if they had the detailed knowledge of civil procedure to be expected from litigation lawyers. As Mr Bowdery forensically submitted, in his witness statement Mr Callow, the defendant’s corrosion expert, responding to a criticism of his decision to take his own tests during the course of the July 2019 Socotec testing, said that he did not believe that it was inappropriate for him as an expert to carry out his own separate testing, because in his view “it is standard industry practice for each expert to take their own measurements, if they wish to do so”. Whilst that is of course a response to a criticism of a different type of action, it does rather tend to indicate that Mr Callow saw nothing wrong in principle with experts carrying out their own inspection and measurements notwithstanding the joint instruction of Socotec.
  10. However, the defendant and the other parties submit that this decision cannot be considered in isolation from the associated decision to keep the instruction concealed from the other experts and the other parties. In my view it is important to consider this point in a structured fashion.
  11. The first point to be made is that in my view there can be no general obligation upon a party such as the claimant to notify the other parties to litigation that it is instructing a testing house such as Socotec to undertake inspections and tests on its own property, with a view to putting the results of that work to its expert for consideration once available. Whilst, as I have said, in the particular circumstances of this case the proper course would have been for the claimant to have sought agreement for a further joint instruction before seeking the court’s permission to instruct Socotec direct, that does not also carry with it a separate or associated obligation to notify the other parties if it decided, mistakenly but in good faith, to instruct Socotec directly without first taking those prior steps.
  12. I accept that it would have been better for the claimant, having made the decision (albeit mistakenly in my view, as I have said) to instruct Socotec direct, to have notified the defendant and the other parties that it had decided to issue separate instructions to Socotec to carry out these further inspections and tests and to explain why. That would have given the defendant and the other parties the opportunity if so advised to take that matter further, possibly by making an application to the court to seek to restrain the claimant from so doing. Or the defendant and the other parties might have adopted a reasonable approach, which the court might well have endorsed if required, of agreeing to a joint instruction or, perhaps, of giving the other experts the opportunity to comment on the proposed inspection and testing procedures and/or the opportunity to be present during the further inspections. However these are all observations about what in my view good practice would have required rather than my accepting a submission that the claimant and its legal advisers and its experts all had specific obligations to notify their counterparts of their intention to instruct Socotec.
  13. The second point to be made is that in my view there is nothing in the principles established by case law or the CPR or the Guidance which suggests that a Part 35 expert is under an obligation to notify his or her fellow experts that he or she has recommended or been instructed to or has instructed a testing house to undertake inspections and tests to be used to assist the expert in reaching opinions in relation to the issues upon which his or her opinion is sought. To the contrary, what the principles make clear is that the expert must identify in his or her report the relevant material upon which he or she has relied in reaching his or her opinions. That would include an obligation to refer to such further results if material to his or her opinion, favourable or unfavourable to the client, and to take steps to ensure that such information is made available to his or her counterparts. But there is no obligation, as Mr Bowdery put it, for the expert to give his or her fellow experts a “running commentary” on the investigations which he or she is conducting or having conducted to get to that point. In my judgment the obligation of transparency does not extend that far and no authority has been cited to me to suggest that it does.
  14. It follows, in my view, that no criticism can properly be made of Mr Davis or Dr Clarke for not disclosing the fact of these separate instructions to their fellow experts either in correspondence or at the joint meeting. What is clear is that the results of those further inspections and tests were disclosed to the other experts as soon as they were made available. That of course was entirely appropriate and in accordance with good practice and their obligations as Part 35 experts. Nothing more was strictly required of them before that date.
  15. Nonetheless, I would venture to suggest that it would have been sensible for the experts to have suggested to the claimant or its legal advisers that for good practical reasons the other experts should be notified of what was being done and given the opportunity either to offer comments or to attend the further inspections. However I am quite unable to accept that the experts were under an obligation to do so unilaterally, which would of course not have been their right, nor that they would have been obliged to resign as experts had the claimant refused to permit them to notify the other experts at this point.
  16. The defendant and the other parties also submit that the response of Mr Davis and Dr Clarke to this application, whereby they strongly deny any wrongdoing, is in itself concerning. However, since I agree that they have not, in fact, been guilty of any wrongdoing, I am unable to accept that submission either. Indeed, I would observe that their defensive response is not an altogether surprising response to the aggressive tenor of the application. I am however troubled by their failure to explain the basis for Mr Davis’ conduct in instructing Socotec not to disclose the separate instruction from the other experts and for Dr Clarke’s conduct in not raising the fact of these further investigations at the joint meeting. As has been submitted, the claimant and its legal advisers have not shed any light on this issue either. If it was necessary for me to reach a conclusion on this point I would conclude on the basis of the (albeit limited) material before me that it was the claimant and/or its legal advisers who instructed Mr Davis to give these instructions to Socotec and who had instructed Mr Davis and Dr Clarke not to disclose the instructions to their fellow experts. I would conclude that this was on the basis that the claimant and its legal advisers did not want to give the solicitors for the defendant and the other parties the opportunity to seek to put a spoke in the wheels of obtaining this further information in good time to be able to deploy the results at the joint meeting. Whilst, as I have said, I do not consider that to have been a proper basis for making such a decision, it does not in my view support a conclusion that the role played by Mr Davis and Dr Clarke in this is such as to demonstrate such a serious lack of independence as would justify rendering the entirety of their evidence inadmissible. It must not be forgotten that experts do not have conduct of the case and to view them as having some form of roving or supervisory role over matters which are outside their strict remit would be quite wrong and positively unhelpful.
  17. In the circumstances I am quite satisfied that there is no basis for acceding to the application on this basis. However I should also consider a wider question, which is what would have been the proper and proportionate response to the events which have occurred even if I had reached the conclusion that one or other or both of the experts ought not to have allowed themselves to have been involved in these unilateral and concealed instructions. I would have needed to consider whether that conduct was such as to demonstrate that they could not be relied upon to give independent expert evidence in these proceedings, so that their evidence should be declared inadmissible at trial. In my view in the absence of any evidence, and as I have said there is none, that this conduct was intended to procure skewed or unreliable results to support the claimant’s case or to obtain some other unfair advantage in the litigation for the claimant, I would not have been satisfied that this conduct was such as to lead to such a conclusion with such wide-ranging consequences. I would have had to consider other more proportionate responses, for example ruling that neither the claimant nor its experts should be entitled to rely upon the results of these further inspections and tests or, for example, deciding that such conduct should go to the overall weight to be attached to the evidence of those experts rather than rendering their evidence as a whole inadmissible. I would also have needed to consider separately the position of Mr Davis and Dr Clarke. Whilst it is clear that Dr Clarke cannot disassociate himself completely from these events it is nonetheless apparent that his involvement in the instructions and in keeping them secret was far less than that of Mr Davis and in my view it would have been wholly disproportionate to exclude his evidence in its entirety even if that had been an appropriate decision as regards Mr Davis.

A SEPARATE COMPLAINT

The judge also considered, and rejected,  a separate complaint

    1. The final complaint made is against Dr Clarke on the basis that he wrongfully took objection to Socotec’s testing methodology in an expert report notwithstanding that Dr Clarke directed the manner in which testing was to take place.
    2. Dr Clarke responded to this criticism in his witness statement at paragraphs 26 to 28 in the following terms.
“26. I have explained that I have not objected to any of Socotec’s tests results. All of their results have been analysed carefully by me, and my conclusions fully disclosed in my report (which consists of 214 pages in total). In respect of the use of Socotec’s magnetic thickness testing to attempt to demonstrate there has been negligible corrosion of the zinc coatings, I have argued in my report that the methodology of magnetic thickness measurements is inappropriate for assessing metal loss by pitting corrosion. I understand that the other experts desired that these measurements be made, and it was not for me to object to these, not knowing at the time what purpose they had for these tests. I have analysed all of the Socotec data in my report, and presented my conclusions thereon.
27. I have no concerns as to the Socotec’s methodology for any of their tests, or indeed of the reliability of their data. Instead, I disagree completely with the interpretation of the magnetic thickness data made by my fellow experts, the reasons for which I put forward comprehensively in my report. This is indeed the role of an expert under CPR Part 35. I have set forward the scientific reasons for my conclusions. I have worked on the basis that Socotec, as a large and well-resourced independent testing house, were fully competent in the way in which they carried out the testing. Wherever it appears that there were inconsistencies or anomalies in their data, this was corrected by myself and all of the experts. Indeed there were several drafts of the Socotec report which needed to be produced.
28. The concerns which I raised in respect of whether or not Socotec has measured both sides of cold-formed galvanised components were based on the fact that the geometry certainly of some components meant that one side was enclosed, and therefore inaccessible.”
    1. That evidence, if genuine, is clearly a complete answer to this complaint. It cannot seriously be suggested that this court could reject that evidence at this interlocutory hearing and, in case there is any doubt, I am quite unable to do so.
Conclusion
  1. For completeness, I should say that even considering all of the separate allegations in the round I do not consider that they come anywhere near justifying the draconian order sought by the defendant and supported by the other parties.
  2. These are the reasons why I have not acceded to the defendant’s application.