EXPERT EVIDENCE, NECESSARY EXPERTISE AND ADMISSIBILITY: BOP-ME, MASKS AND EXPERTISE

There is an interesting discussion of the use of expert evidence in the context of specialist proceedings in the judgment of Mr Justice Fraser in Bop-Me Ltd v Secretary of State for Health and Social Care (Rev 1) [2021] EWHC 1817 (TCC).  The judge allowed expert evidence to a very specific and limited degree. The judgment also contains a reminder that if, at trial, it transpires that an expert does not have the necessary expertise then the evidence may not in fact be allowed.

“If, at trial, such a challenge is made to the necessary expertise on the part of a witness, and the court finds that challenge to be made out, then the party who has instructed that expert will simply find themselves without expert evidence as a result, with any consequences that entails. It is incumbent on the parties to select a witness with the necessary expertise.”

THE CASE

The claimant brings proceedings relating to the supply of face masks to the NHS.  The claimant sought permission to rely on expert evidence in support of its claim.  The issue was whether expert evidence was necessary, on what issues and whether there should be a joint report or each party should instruct an expert.

THE JUDGMENT ON THESE ISSUES

The judge allowed expert evidence on one, discrete, issue, allowing each party to call their own expert.

1. 1. Permission for expert evidence is rarely given in procurement cases. Without reciting the different Regulations, most procurement challenges are based on breaches of transparency, equal treatment and/or manifest error, although in recent years, complaints by losing tenderers that the winning tender has submitted what is called an “abnormally low tender” have increased. In very few of these cases does the need for expert evidence arise. Very occasionally, there may be areas where the subject matter of the procurement is such that some expert evidence is required to assist the court in understanding the technical subject matter, but these are rare. For example, even in the field of decommissioning nuclear reactors, which could readily be described as a highly technical area, widespread procurement challenges can be conducted without either party even suggesting expert evidence is necessary; Energy Solutions EU Ltd v Nuclear Decommissioning Authority [2016] EWHC 1988 (TCC).

1. 1. Regardless of that, there are some important decisions dealing with the issue of expert evidence in the procurement field in particular. Procurement cases proceed both under the relevant regulations (in this case the PCR 2015) and also by way of judicial review. Some proceed under both at the same time.

1. 1. In BY Development Ltd and others v Covent Garden Market Authority [2012] EWHC 2546 (TCC) Coulson J (as he then was) considered a number of authorities. These included, in the field of judicial review, R (on the application of Lynch) v General Dental Council [2003] EWHC 2987 (Admin); and more specific procurement cases such as Harmon CFEM Facades (UK) Ltd v Corporate Officer of the House of Commons [1999] 67 Con LR 1 and Henry Brothers (Magherafelt) Ltd v Dept of Education for Northern Ireland [2011] NICA 59. In BY Development the judge said the following:

“[20] In summary, I consider that the authorities demonstrate that, where the issues are concerned with manifest error or unfairness, expert evidence will not generally be admissible or relevant in judicial review or procurement cases. That is in part because the court is carrying out a limited review of the decision reached by the relevant public body and is not substituting its own view for that previously reached; in part because the public body is likely either to be made up of experts or will have taken expert advice itself in reaching the decision; and in part because such evidence may usurp the court’s function.

[21] All of that said, however, I believe that it goes too far to say that expert evidence can never be admissible in public procurement cases concerned with manifest error. In some cases, it may be required by way of technical explanatory evidence (Lynch). In addition, there may be other cases where, unusually, such evidence is both relevant and necessary to allow the court to reach a conclusion on manifest error. That may be particularly so where the particular issue is specific and discrete, such as a debate about one of the criteria used in the evaluation (Henry Bros) or complex issues of causation (Harmon). Thus, I do not accept the submission, trailed at one point in Mr Giffin’s skeleton argument, that, if expert evidence is required to support an allegation of manifest error, that would of itself indicate that the error could not be manifest. In my view, that would always depend on the facts of the particular case.

[22] Having concluded that expert evidence is not generally admissible in a case of this type, but that there may be unusual circumstances which justify the use of experts, I turn to the particular facts of this case. Is this a claim where the technical background is so complex that explanatory expert evidence is required, and/or is this an unusual case where expert evidence on some or all aspects of the tender evaluation process is required in order to allow the court to reach a proper view on the issues of manifest error or unfairness?”

1. 1. I respectfully agree with that analysis. It has been adopted in a number of other procurement cases, for example Circle Nottingham Limited v NHS Rushcliffe Clinical Commissioning Group [2019] EWHC 3635 (TCC), a decision of HHJ Stephen Davies sitting as a High Court Judge. It is, in any event, clearly right.

1. 1. Essentially therefore, in a procurement case, these are the two routes by which expert evidence would be admissible, and when permission for such evidence would be considered. That is not to say permission will always be given, because matters of proportionality may arise, but one of the two tests posed by Coulson J must usually be satisfied.

1. 1. In considering that two-part question posed in [22] from BY Development v Covent Garden in the instant case and on this application, I conclude that the subject matter of this claim is not such that the technical background is so complex that explanatory expert evidence is required.

1. 1. Face masks of any type are not technically complex items. They are essentially barriers, admittedly of different types and standards, but technically they cannot sensibly be described as complex. Therefore the first limb of the question posed by Coulson J is answered in favour of the Secretary of State and in favour of refusing permission for expert evidence.

1. 1. Additionally, issues 1 to 3 identified by the Claimant in this application which I have set out at [4] are matters of interpretation and construction, such that the question of expert evidence in respect of them does not arise. These issues concern construction and consideration of the relevant directive, namely Council Directive 93/42/EEC. As such, expert evidence would not be admissible in any event.

1. 1. However, issue 4 at [4] is another matter. This requires the court to consider whether the testing reports were compliant. The Secretary of State has pleaded in paragraph 28(c) of the Defence that the Claimant’s offer was defective because it did not provide testing reports which particularised the testing values. For that reason it was rejected. The Claimant argues that the relevant British Standard, BS EN 14683 does not prescribe the contents of a testing report. If the Claimant is right – and at this stage the court cannot and should not come to a conclusion on that point, other than to say that it is reasonably arguable, and the British Standard does not appear to provide the answer to what should be included – then the issue becomes what technical information should be included in a testing report, and how. The contents of an industry compliant testing report, and whether one was provided in this case, is not a matter upon which the court will have any knowledge of its own. Expert evidence on the industry standard and expected contents of testing reports under the British Standard (which does not prescriptively identify the contents) will assist the court in determining whether the Secretary of State was entitled to conclude that the Claimant’s offer was defective in this regard.

1. 1. In my judgment, this is one of those unusual cases where expert evidence on some or all aspects of the tender evaluation process is required in order to allow the court to reach a proper view on the issues of manifest error and/or unfairness. I therefore find for the Claimant on this application.

1. 1. However, there are two important caveats. Firstly, expert evidence is permitted but only (without further order) limited to the issue identified in [4](4) above. Secondly, the Claimant seeks permission for expert evidence from a “CE Engineer/Consultant”. The Secretary of State challenges this particular description as not being a specific field of expertise to which an expert could belong.

1. 1. In my judgment, there must be a field of expertise in the industry regarding standards and methods of testing PPE of this nature, regardless of whether “CE Engineer/Consultant” is the correct descriptive term. I consider that expression generally would be sufficient for present purposes and to satisfy CPR Part 35.4(2)(a). The just and proportionate way forwards is to grant the limited permission for expert evidence in the way described, and permit either party at trial to challenge the specific expertise of the individual chosen (if so advised). It may be that “testing engineer” is a better term than the one advanced by the Claimant. There may be no difference between these expressions, but any expert must be sufficiently qualified in order to give expert evidence to the court.

1. 1. If, at trial, such a challenge is made to the necessary expertise on the part of a witness, and the court finds that challenge to be made out, then the party who has instructed that expert will simply find themselves without expert evidence as a result, with any consequences that entails. It is incumbent on the parties to select a witness with the necessary expertise. Given the narrowness with which the issue itself is described at [4](4), the precise term used to describe the expert field becomes less important. The order will give permission for an expert in the field of “CE Engineering and/or Testing”.

1. Finally, at the hearing on 28 May 2021, I raised with the parties the issue of appointing a Single Joint Expert under CPR Part 35.7. The parties were reluctant to follow this route. Indeed, Mr Bowsher for the Secretary of State was somewhat more than reluctant. He urged me (if minded to permit any expert evidence) to allow the Secretary of State to have his own separate expert, and not to order the use of a Single Joint Expert. I do not, therefore, order a Single Joint Expert, and each party has permission to instruct and rely upon the evidence of an expert of their own, limited in the way that I have explained. The parties are invited to agree the timetable for such evidence to be exchanged and for meetings between experts to take place. There will be liberty to apply in the order granting permission for expert evidence (which the parties should draw up), to deal with the unlikely event that such agreement cannot be reached.