“THERE IS A WORRYING TREND… IN TERMS OF FAILURE BY EXPERTS GENERALLY IN LITIGATION COMPLYING WITH THEIR DUTIES”

There is an important point about a litigant’s responsibility for the conduct of their own experts (and expert’s conduct generally) in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd (No. 2 Costs) [2021] EWHC 1414 (TCC). This was not so much the conduct of the expert in this particular case but the judge’s identification of a “worrying trend” in relation to experts in litigation.

“Parties to litigation who rely upon expert evidence that fails to comply with the rules should not be encouraged by my finding that in this case the approach of the claimants’ expert was not sufficient, alone and of itself, to justify an award of indemnity costs.”

THE CASE

The judge was determining issues of costs after a trial. The claimants had been largely unsuccessful, having sought £3 million in damages and recovered £2,000.  The judge awarded the claimant to pay indemnity costs for a period. An issue arose as to whether the conduct of the claimant’s expert warranted an award of indemnity costs.

THE JUDGMENT IN RELATION TO THE EXPERT

The judge found that the conduct of the expert in this case did not, in itself, warrant an award of indemnity costs. However a note of caution was issued in relation to the conduct of experts generally.

1. 1. Dealing with the separate and independent attack on the evidence of Mr Hughes, the claimants’ expert, I do not find that his conduct was such that would of itself justify an award of indemnity costs. There are cases where the conduct of experts is such that would, of itself, justify indemnity costs, such as Williams v Jervis [2009] EWHC 1837 (QB), a decision of Roderick Evans J, where two medical experts supported an entirely unwarranted attack on the bona fides of a claimant in a personal injury action. They both gave “strong evidence as to the integrity in the claimant’s case”, which at [36] and [37] meant that the costs of dealing with their evidence was ordered to be assessed on the indemnity basis.

1. 1. Here, although Mr Hughes’ approach to his task left much to be desired, and the list of criticisms are provided at [79] and [80] in the substantive judgment, I do not consider that alone would justify an award of indemnity costs. I do, however, sound this note of caution in terms of experts’ compliance with their duties generally. This is not to equate the quality of Mr Hughes’ evidence in this case, with the experts in the cases to which I now refer. Mr Hughes’s compliance with his duties to the court was of a far higher quality than the failures in these following cases.

1. 1. There is a worrying trend generally which seems to be developing in terms of failures by experts generally in litigation complying with their duties. Practice Direction 35 makes the position very clear:

“2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.

2.2 Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.”

1. 1. CPR 35.3 makes clear that the expert’s overriding duty is to the court and that this overrides any duty to his or her client. This has been reinforced by numerous decisions in the authorities since then. Concentrating solely on more recent ones, in Bank of Ireland v Watts [2017] EWHC 1667 (TCC), Coulson J (as he then was) stated:

“The duties of an independent expert are set out in the well-known passages of the judgment in The Ikarian Reefer [1993] 2 Lloyds LR 68. For the reasons set out above, Mr Vosser did not comply with those duties and I was not confident that he was aware of them or had had them explained. For him, it might be said that The Ikarian Reefer was a ship that passed in the night.”

1. I made certain similar observations in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC) at [237]. In another very recent case, Dana UK Axle Ltd v Freudenberg FST Gmbh [2021] EWHC 1413 (TCC) Joanna Smith J excluded, during the trial itself, the entirety of the defendant’s technical expert evidence due to “the full and startling extent of the Experts’ breaches of CPR 35”. Parties to litigation who rely upon expert evidence that fails to comply with the rules should not be encouraged by my finding that in this case the approach of the claimants’ expert was not sufficient, alone and of itself, to justify an award of indemnity costs.”