CLAIMANTS’ SOLICITORS WERE ON NOTICE THAT AN EXPERT’S REPORTS COULD NOT BE RELIED UPON: THE ISSUE OF PROCEEDINGS WAS AN ABUSE OF PROCESS

We are returning to the judgment of District Judge Dawson in Jagger (& others) -v- Axa Insurance PLC, has enough material to keep this blog going for a month. (The judgment is available on a link from the Law Society Gazette here).  This time we are looking at the judgment in relation to the claimants’ solicitors reliance on expert evidence which they knew (or certainly should have known) was tainted.  The decision to issue proceedings in reliance on such evidence was, it was held, an abuse of process.

“In my judgment it was an abuse of the Court’s process to issue these claims based on expert evidence from Mr Millar when those representing the Claimant had been informed that there were significant concerns, supported by a disclosed document, as to his independence in a previous case and therefore his understanding of his duty to the Court
as an expert; and between two and three months before issue of each of these claims, the Claimants’ solicitors had had conduct of a case which had been discontinued by them after their replacement expert had given evidence as to liability which meant that they had no realistic prospect of success on a case where Mr Millar has previously provided contrary
evidence. It is the combination of those two matters which draw me to that conclusion.”

 

WEBINAR ON EXPERT EVIDENCE IN THE COURTS IN 2023

This is one of many, many, cases on expert evidence in the courts in 2023.  These cases are being considered in a webinar on the 24th January 2024 in  “Experts in the Courts in 2023: Essential issues for all litigators and experts”.  Booking details are available here. 

 

THE CASE

The claimants brought actions for damages alleging that cavity wall insulation had been inadequate.  Three of the claimants relied upon an expert  report from a Mr Millar.   Mr. Millar was a director of a company that had a financial interest in the outcome of the claim.  There had been earlier proceedings in similar actions where this had come to light.  The specific issue the judge was considering here was whether it was an abuse of process for the claimants’ solicitors to issue and continue with the actions where they knew (or should have known) that this expert’s evidence could not properly be relied upon.

THE JUDGMENT ON THIS ISSUE

The judge found that this was a type of claim that could only be issued with the assistance of expert evidence.  A lay claimant could not know, without expert help, whether there were defects in the insulation which had been caused by the breach of duty of the defendants.

 

173. Having decided that some expert evidence is needed before a claim can be properly
issued, the question arises whether the reports of Mr Millar, even in circumstances where
it is accepted that a new expert would need to be instructed, were sufficient.

174. The Defendant puts its case thus (from Counsel’s skeleton argument); “Mr Millar
is not an independent expert upon whose evidence reliance can properly be placed as to
liability or quantum” and the Claimants’ solicitors knew that (it being suggested that the
Claimants’ solicitor had admitted that fact in a previous case).

175. This is hotly disputed by the Claimants’ solicitors (both the fact that the evidence
cannot be relied upon and the fact that they knew about it).

176. I have not heard any oral evidence in relation to this however from the witness
statements adduced before me;

177. Mr Millar was the Director of a company called Eco Serv Surveyors Limited, at all
material times (he resigned in June 2022, the reports in these cases were compiled in 2019).

178. That company purported to provide independent expert reports for cavity wall
insulation cases from Mr Millar. It would appear from the evidence that Eco Serv
Surveyors Limited were responsible for initially approaching the Claimants (by way of a
“field agent”), of advising them that if they have damp problems it could be due to defective
cavity wall insulation, that they may have a claim, and for conducting and producing the
initial Inspection Report which was then sent to the expert to verify.

179. In the course of CWI litigation which did not involve SSB Law, there was
disclosure of a form of authority signed by the relevant Claimant which stated “I …..
hereby authorise my solicitors “TBC” to instruct and pay my damages for cavity wall
extraction (removal from cavity) only arising from my cavity wall claim to ECO Serv
Surveys Ltd” (the latter a non-existent legal entity at the time). The “inspection report” was
carried out by their agent (non-qualified) and then the expert report was subsequently
provided by Mr Millar (before a replacement expert was utilised). The Form of Authority
was (probably inadvertently) disclosed; the fact of such an agreement was neither disclosed
in Mr Millar’s report nor in the Claimant’s witness statement (the case being discontinued
before trial).

180. Mr Toyn deals with this in his evidence thus “There is simply no basis for assuming
all the evidence given by Mr Millar is tainted by a lack of independence on the basis of one
finding made in a case where Mr Millar was not actually giving evidence and in which the
circumstances of the finding are unclear”.

181. I am afraid this is either erroneous or disingenuous. The Form of Authority (from
that case, disclosed in these proceedings) raises real and significant concerns about Mr
Millar as an expert. At the very least, the prima facie evidence before the Court suggests
that he was either totally unaware of or ignoring his duties as an expert if he was the
Director of a company which had a significant financial interest in the case at the same
time as producing expert evidence purporting to be independent. Once such evidence had
(inadvertently) come to light it is correct to say there has been no finding of fact in relation
to this and that Mr Millar has not addressed the matter in any evidence. Mr Millar has never
been relied upon as the expert in a case since and no Court has therefore had any
opportunity to deal with the matter.

182. The Defendant is right to say that there are significant concerns about the evidence
of Mr Millar and reports produced by him.

183. The issue in relation to the three claims before this Court however is whether the
Claimants knew or should have known at the date of the issue of the claim that his evidence
was potentially tainted, and if so whether it was so tainted that the claim should not have
been issued without receipt of further expert evidence.

184. The Defendant relies on what occurred in another case, namely Zaheer v AXA
Insurance UK PLC, G74YJ652. In this case SSB Law acted for the Claimant. On 18th May
2022 the Defendant issued an application supported by a witness statement by Matthew
Dickinson (the same solicitor who acts for the same Defendant in the incident claims)
which set out the concerns relating to Mr Millar and Eco Serv in considerable detail. Such
application was for a wasted costs order against SSB Law. By the time of the application
the Claimant was relying on a different expert at trial.

185. Such application was listed to be heard at the conclusion of the trial on 24th May
2022. After hearing at least some of the Claimant’s (new) expert’s evidence at such trial,
the Claimant agreed that the claim should be dismissed and the hearing of the wasted costs
application was adjourned to 19th August 2022 initially for a directions hearing and then
thereafter for a hearing on 28th October 2022.
186. I have been provided with the transcript of judgment given by HHJ Gosnell. It

says this;
187. “it is accepted at this stage that in instructing Charles Millar as Part 35 expert to
support this claim, the solicitors who acted on behalf of the claimant have engaged in
conduct which was improper, unreasonable or negligent. It is conceded that it was for the
reasons set out in the sixth witness statement of Mr Dickinson.

188. Essentially, what he says in that statement is that Mr Millar was never independent;
he was a director of a company called Eco Serv, who were connected with a claims
management company. He had a financial interest not only in the claim succeeding to a
significant sum because his claims management company were on a percentage of the
compensation.

189. SSB Law have not put in any evidence themselves to deny that, and counsel on
their behalf has essentially conceded that those factual assertions are not disputed”.

190. HHJ Gosnell was therefore presented with evidence from the Defendant and (as it
is accepted) there was no contrary evidence from SSB Law. It was unsurprising therefore
that he reached the conclusions he did. He did not hear any evidence and he did not
therefore make findings of fact which can be relied upon in subsequent proceedings.

191. The question as to whether an abuse of process has occurred appears to me is what
knowledge SSB Law had when they issued these three claims, relying on Mr Millar’s
reports.

192. The evidence presented by SSB Law raises concerning issues. Zaheer was a CWI
claim which ended with not only it being discontinued mid-way through the trial but with
an application for wasted costs against SSB Law. Wasted costs orders necessitate a finding
that the solicitors have engaged in negligent, improper or unreasonable conduct. One would
have expected therefore from the moment that there is any indication of such conduct being
alleged, the senior management level and certainly the relevant supervising partner would
be involved.

193. In this case, the application was unusually made in advance of the trial by way of a
written application supported by a (detailed) witness statement. The allegation made in
that, that an expert witness who had been instructed in many cases by SSB Law had acted
with complete disregard to his professional obligations as an expert witness to the extent
that he had a personal financial interest in a claim, would be one which would have been
expected to excite much professional curiosity at the very least. Such witness statement
appended the relevant Form of Authority. DJ Goldberg had ordered on 18th May 2022 (such
order also being sent to SSB Law) for the papers in claim F09YM874 to be disclosed
limited to evidence as to the activities and practices of Evo Serv Surveyors Limited, Mr
Charles Millar and the Claimant’s representatives – again an unusual order that would be
expected to lead to investigation by the firm.

194. The fact that this led on to an allegation that this firm had acted in an unreasonable,
improper or negligent manner would have usually led to the matter being dealt with at the
highest level and careful consideration being given to what evidence should be adduced. I
am aware that SSB Law effectively contend that the wasted costs order was made on the
basis that their negligent, improper and unreasonable conduct related to the fact that they
should not have continued to rely on Mr Millar after they were or should have become
aware that he was unavailable to continue as an expert (this is not explicitly stated but that
is what their evidence amounts to). The suggestion that they reasonably chose to ignore
evidence of the far more serious allegation is not however credible.

195. Mr Toyn states “Neither I nor to the best of my knowledge and belief no one else
at SSB Law had any reason to believe that the reports prepared by Mr Charles Millar were
anything other than entirely independent and honest….

196. The allegations made by Mr Dickinson regarding Mr Charles Millar’s
independence and SSB Law’s understanding of it in the passages of his witness statements
I refer to at paragraph 46 above are wholly and expressly denied……”

197. [in relation to HHJ Gosnell’s statement that Counsel for the Claimant had
essentially concluded that these factual assertions are not disputed]

198. “any such concession made by Counsel in that hearing was made without
instruction from SSB Law and without authority from SSB Law, Any such concession was
made incorrectly and should never have been made.

199. I do not understand HHJ Gosnell to have been saying in the Zaheer case that Mr
Millar would not be a suitable expert in any case”.

200. I am concerned that the position of SSB Law remains that, in the face of
unchallenged documentary evidence that Mr Millar has purported to act as an independent
expert whilst having a direct financial interest in the outcome of the same case (by way of
an agreement signed by a Claimant that the entirety of the rectification costs, the significant
majority of the damages likely to be received in the event of a successful claim must be
paid to a company of which he is a Director) they do not accept that his understanding of
his expert duties appears on a prima facie basis to be so deficient that he would not be a
suitable expert. Further that, as long as they have not been provided with direct evidence
of a similar agreement in respect of their cases, the fact that there is documentary evidence
that he has acted in such a way in a previous case (in the absence of any evidence of even
a bare denial from him) can and indeed should be ignored.

201. It cannot be right in my view to state that the Claimants’ legal representative could
rely on the statement of truth on the expert report of the expert’s understanding of his duties
in the light of evidence that in a previous case such statement had been signed when such
circumstances had arisen. I am not making a finding of fact that Mr Millar has acted
wrongly. He is not a party to these proceedings. The question before the Court is whether
the evidence that was adduced was such that his evidence should not be relied as evidence
upon which it was proper to base the issue of a claim.

202. This is not an allegation made in total isolation nor can it be contended that the
Inspection Reports produced by Eco Serv are not affected (if Eco Serv operated by way of
ensuring they had a financial interest in a claim at one time, producing Inspection Reports
which directly affected that financial interest, it would be contradictory to state that whilst
Mr Millar’s report could not be relied upon, their inspection reports could be; those
producing those were not qualified or subject to the expert’s duties to the Court). I have
also noted the specific warning by the Solicitors Regulation Authority in July 2020 which
alerts solicitors to the possibility that “some homeowners have apparently been contacted
by claims management companies and law firms and been told that they cavity wall

insulation was either fitted incorrectly, unsuitable for the property or that it should never
have been offered/fitted at all” and that firms were advised to “be careful to verify the
source of any referral. This will help law firms make sure that the claim did not come from
cold calling or other poor practices”. That warning puts the Claimants’ solicitors on
sufficient notice to at least critically appraise the source and motivation of reports before
it; together with the evidence disclosed in the Zaheer case, there should have at least a
detailed investigation as to what had occurred.

203. I am also concerned about the evidence of Mr Toyn that “The conclusions that Mr
Millar reaches in the reports in the cases now before the Court, along with other reports
prepared on behalf of SSB Law’s clients did not seem to be radically different to or out of
step with the conclusions reached by the firm in other cases” when in one of the (rare) cases
which had actually proceeded to trial (a number being adjourned or discontinued either on
the morning of hearing or very shortly before), SSB Law had discontinued the claim
because the Claimant’s new surveyor had reached very different conclusions in his report
and subsequently in his evidence at trial. The decision to discontinue (mid-way through
trial, after hearing at least some of their own expert’s evidence and having incurred almost
all of the costs) must have been reached on the basis that they were (highly) unlikely to
succeed on liability. This occurred before the Defendant’s expert started to give evidence.

204. The evidence of Mr Toyn is that any concession made by Counsel in the Zaheer
case was not upon instructions. Even without such concession however, Counsel (and the
Court) appears to have been left with the unchallenged documentary evidence of the Form
of Authority and therefore the assertion that in a previous case the expert had apparently
acted in a manner which was at odds with his duties to the Court.

205. It is not SSB Law’s position that they have made investigations into the Form of
Authority and then reached a decision that, as a result of such investigations, Mr Millar had
acted in a proper manner. It is their position that they have reached a position that as they
have not been provided with evidence of any such agreements in subsequent cases they
can safely conclude that there were no such agreements (Mr Toyn states that he is satisfied
that no such agreements exist in any cases in which SSB Law are instructed). It is an
obvious omission that they present no evidence that they have in fact taken any instructions
from any of their clients (in particular the Claimants in this matter) as to whether such
agreements have been entered into or have asked Eco Serv to confirm whether any such
agreements had been entered into. This concerns an agreement which was allegedly made
before solicitors became involved and to which the solicitors were not a party.
Furthermore it involves an agreement which would only be necessary for Eco Serv to send
to the solicitors after the conclusion of a successful claim for damages. Having been
provided with evidence that such an agreement had been made in a previous case, I find it
extraordinary that the solicitors have failed to adduce any evidence that they have even
taken instructions from the Claimants about this matter. Even if they had had such evidence
though, it would not have dissipated the concerns about the expert’s understanding of his
duties to the Court.

206. Notwithstanding all of those concerns it is correct to record that I do not agree with
Mr Dickinson that SSB Law were aware of “compelling evidence” that Mr Millar “had
been fabricating and/or exaggerating claims”. That significantly overstates the position.

207. Given the contentions made on behalf of the Claimants that reliance on the expert
reports of Mr Millar was justified, there were no specific submissions before me in relation
to reliance on Inspection Reports (in the absence of any expert evidence). Ms Allen
specifically states that the cases before the Court have been so pleaded after input from the
Inspection Report is signed off by a RICS qualified expert . I am therefore not asked to
decide the position if the Claimant only relied upon an Inspection Report; insofar as I am,
I note the concerns about the Inspection Reports produced by Eco Serv and the fact that
the same considerations arise as to these (produced by a direct employee of Eco Serv which
had a direct interest in the claim) as the reports of Mr Millar.

208. The question before me is whether it was an abuse of process to issue proceedings
in these three claims based on an expert report produced by Mr Millar in cases where
limitation was fast approaching and they could not realistically obtain further expert
evidence, given that the firm had both been in receipt of the statement of Mr Matthew
Dickinson in the Zaheer case from May 2022 disclosing the Form of Authority and the
knowledge that in the Zaheer trial (also in May 2022), Mr Ben Dickinson’s evidence on
liability had cast considerable doubt on the initial expert evidence of Mr Millar. (It is noted
that the issue of the proceedings with which I am involved pre-dated the hearing before
HHJ Gosnell and therefore whether concessions were made, rightly or wrongly, at that
hearing or whether the Claimants’ solicitors should have taken into account the judgment
of HHJ Gosnell are irrelevant to the issues arising out of these claims).

209. In my judgment it was an abuse of the Court’s process to issue these claims based
on expert evidence from Mr Millar when those representing the Claimant had been
informed that there were significant concerns, supported by a disclosed document, as to his
independence in a previous case and therefore his understanding of his duty to the Court
as an expert; and between two and three months before issue of each of these claims, the
Claimants’ solicitors had had conduct of a case which had been discontinued by them after
their replacement expert had given evidence as to liability which meant that they had no
realistic prospect of success on a case where Mr Millar has previously provided contrary
evidence. It is the combination of those two matters which draw me to that conclusion.

210. For the sake of completeness I have to raise concerns about the third statement of
Ms Allen and in particular the final sentence of paragraph 7 which utilises the word
“apparently” in the context of “comments apparently made in that hearing”. I am unsure
whether she is intending to cast doubt on the accuracy of the transcript (noting that the
same has been certified by the transcription company and approved by HHJ Gosnell) or
the accuracy of HHJ Gosnell’s record of the comments made by their Counsel but this is a
somewhat misconceived statement given that she was not present, her own evidence is that
there was no proper record of the hearing kept by anybody in the firm or acting for them,
and she has not sought fit to obtain a transcript of the hearing.

211. Issues arising out of Mr Muir’s evidence

212. In the final claim (030DC688 “Jagger”) the expert report obtained by the Claimant
was from Robert Muir. The Defendant has raised concerns as to the reliance on his reports
at the issue of the claim. I do not intend to go through that evidence in detail for the
purposes of this judgment. Unlike in the case of Mr Millar, the Defendant cannot point to
any significant evidence that raises a significant concern that the statement of truth signed
by Mr Muir should be doubted. I am aware that they have raised concerns that a different
expert has stated that the same agency has misused his signature in relation to amended
reports. There is no suggestion that Mr Muir has ever raised these concerns. Further (and
unlike in the case of Mr Millar), the Defendant cannot point to any significant evidence
that raises the significant concern that Mr Muir’s evidence may be doubted in terms of
liability/causation. Their evidence in relation to this is at its highest is that replacement
experts have reduced rectification costs (albeit not to a highly significant extent and at the
time of the issue of this claim (which is the relevant time), there were both decreases and
increases in rectification costs).

213. I do not find that at the time the “Jagger” claim was issued it was an abuse of process
to issue given the expert evidence of Mr Muir, irrespective of the fact that the Claimant
knew that they would have to obtain new expert evidence to proceed with the case. Nor do
I find that to amend the claim to the value claimed given that the only value the Claimant
realistically had before her was that in Mr Muir’s report was an abuse of process.