THE REAL DANGER OF LAWYERS GETTING INVOLVED IN THE JOINT STATEMENT OF EXPERTS: IT IS WRONG AND IT IS COSTLY: A CASE THAT ILLUSTRATES THE POINT

In  Glover & Anor v Fluid Structural Engineers & Technical Designers Ltd & Ors [2024] EWHC 1257 (TCC) Mr Simon Lofthouse K.C., sitting as a High Court Judge, considered the issues that arose when a party had tried to influence the contents of a report following a joint meeting of experts. The attempted interference was more through ignorance than malice, however it was an extremely costly mistake.

“I accept that my firm did not comply with the applicable rules and guidance. In particular, I accept that we made comments on and proposed amendments to draft 3 of the Joint Statement that we were not permitted to make. In addition, I confirm that (albeit to a lesser extent) my firm also provided comments on and proposed amendments to drafts 2, 6 and 7 of the Joint Statement that we were not permitted to make. This non-compliance arose through a failure to understand the applicable rules and guidance and I apologise unreservedly to the Court and AXA XL for this.”

WEBINAR ON EXPERTS IN THE COURTS IN 2024

It is the almost certain knowledge that issues with experts will continue to crop up that I have arranged a webinar towards the end of the year, “Experts in the Courts in 2024” on the 11th December  2024 , booking details are available here. 

The webinar will examine the key cases where expert evidence and expert conduct has been considered by the courts throughout the year.

Matters to be considered include:

• Experts reporting outside their expertise
• Experts in fundamental dishonesty cases
• Compliance with the rules
• The joint meeting of experts

THE CASE

In a construction dispute the parties had permission to rely on expert evidence. It was ordered that the experts meet and provide joint reports. The defendant AXA’s expert became concerned that the claimant’s solicitors were becoming heavily involved in the drafting of the joint report.

1. The Rule 35.12(3) statement evolved through various drafts reflecting discussions between the experts. When the draft was at an advanced stage Mr Tucker expressed his concern to RPC, solicitors for AXA XL, as to what he believed to be significant changes to Mr Hardy’s views recorded in the latest version. Put shortly, Mr Tucker was concerned that on the face of it there appeared to have been involvement from the claimants’ lawyers.

AXA’S APPLICATION AND THE CLAIMANT’S COUNTER-APPLICATION

In a number of letters (well worth reading) AXA’s solicitors continually asked the claimant’s solicitors whether they had complied with their duties and kept out of any role in the drafting of the joint statement.  The claimant’s solicitors never provided a definitive response. AXA  made an application seeking revocation of the claimant’s right to rely on their expert. The claimant made an application for permission to rely on a new expert.

THE CLAIMANT’S ADMISSION THAT IT HAD NOT COMPLIED WITH THE RULES

1. 1. In her statement of 23 February 2024 Ms O’Callaghan of RPC exhibited and commented on the correspondence set out above.

1. 1. Peter Stockill, the partner at PMC with overall supervision of the claimants’ claim, provided a statement dated 25 April 2024 in support of the claimants’ application. Privilege was waived in relation to communications between PMC and Mr Hardy as exhibited to his statement. This included the drafts of the experts’ joint statement.

1. 1. In addressing the expert process, Mr Stockill states :

“12. I accept that my firm did not comply with the applicable rules and guidance. In particular, I accept that we made comments on and proposed amendments to draft 3 of the Joint Statement that we were not permitted to make. In addition, I confirm that (albeit to a lesser extent) my firm also provided comments on and proposed amendments to drafts 2, 6 and 7 of the Joint Statement that we were not permitted to make. This non-compliance arose through a failure to understand the applicable rules and guidance and I apologise unreservedly to the Court and AXA XL for this.

13. In acting as we did, my firm did not intend to have any impact on the substance of the views of the Claimants’ structural engineering expert, Mr Hardy, or on his independence. However, I do accept that the Court could not now be satisfied as to his independence.

14. I also wish to make clear that neither the Claimants nor counsel had any involvement in the joint statement process”

1. 1. Give that admission it is unnecessary to go through the totality of the communications with Mr Hardy on drafts 2, 6 and 7 in respect of which privilege was waived. The stated intention underlying the revisions to the third draft statement is apparent from an email dated 12 October 2023 and sent to Mr Hardy by an associate at PMC, copied to Mr Stockill:

“Please see attached our amends to the Joint Statement. I accepted Howard Tucker’s previous changes and made our amends in track (but I have removed the metadata so it doesn’t show PMC made the amends).

You will see the amends are with the intention of staying faithful to the pleaded issues rather than the plethora of objections raised by Howard Tucker which are more appropriate for the comment boxes. We have also covered off other pleaded issues which the engineering experts are expected to cover including all pleaded theories of negligence and the remedial works scope (linked to the party wall submission that Howard Tucker should have a copy of but if not, we can send you a copy).

We would be grateful if you could review and confirm if you agree with the changes and where you wish to make further changes to the statements and your comments, to make these. Please then send us a further copy for review before this is sent back to Howard Tucker to comment on.”

1. 1. There were extensive revisions and deletions made to the third draft. To fully understand their nature it is necessary to compare the third draft enclosed to the e-mail of 11 October 2023 with that provided to PMC by Mr Hardy on 9 October 2023. The revisions were generally undertaken by way of track changes with explanations provided by way of “Commented” boxes adjacent to the revised text.

1. 1. At paragraph 50 of his witness statement Mr Stockill addresses the revisions made. Given Mr Stockill does not seek to justify the revisions made it is unnecessary to address them in great detail however I indicate their nature below by way of examples below.

1. 1. Issue 1.2 “Expectation of damage” was revised to read “Inevitability of damage”. The previous wording against that issue:

“It is not possible to construct a new basement extension to a Victorian terrace without cracking in the neighbouring properties. Pre existing cracking and distortion in the neighbouring properties is to be expected. Cracking arising from the basement construction should be limited to within tolerable limits”

was revised to read:

“The policy does not provide for damage “which can reasonably be foreseen to be inevitable having regard to the nature of the work to be executed or the manner of its execution” which is an exclusion under the XL Policy

And Mr Hardy’s Comment “Agreed” against the original issue was deleted with “noted for reference” added against the revised issue.

The explanation provided in the “Commented” box was:

“Not an expert issue relevant to the pleading”

1. 1. In his witness statement Mr Stockill explained that the revised wording was to refer explicitly to the policy exclusion wording in circumstances where the earlier draft used terms which were “unhelpful” because the policy wording was “inevitable” and that addressing issues such as “Expectation of damage” and “Accepted limits on damage to neighbouring properties” (the wording in issues 1.2 (second) and 1.3 which was similarly revised) may “lead the experts to answering the wrong question“.

1. 1. Against Issue 3.2, “Grout gap between party wall underpinning and the executed work face” the previous wording under “Statement” was recorded as “Agreed” by Mr Hardy and Mr Tucker:

” To the centre/rear of the party wall the ground was in contact with the earth face at the front the results from the coring were inconclusive but show trench sheeting behind the underpinning. If there were voids behind trench sheeting at the rear of the underpin towards the front of the building this could have allowed the ground beneath the foundations of the front wall of No 122 to settle”

As revised, that previous wording in the “Statement” column was deleted and replaced with :

“There was a grout gap between party wall underpinning and the excavated earth face”

Mr Hardy’s agreement to the previous wording in the column “Mr Hardy’s Comments” was deleted and replaced with:

“Not agreed. To the centre/rear of the party wall the ground was in contact with the earth face, so there was no gap. At the front one core found concrete cast up to a metal trench sheeting. It would not be possible to explore behind this sheeting without trespassing into 122 WBG’s land. There is no evidence that there are voids behind the trench sheeting that required grouting and this is only a theory. Even if there is evidence to support this theory, any lack of grouting in this area does not explain the significant movement and damage to the front façade”

1. 1. Mr Stockill seeks to explain this revision as follows:

“Item 3.2 was not faithful to paragraph 55.2(a) of AXA XL’s Defence regarding the grouting gap between the underpinning and excavated face, so we sought to make it so. We added comments for Mr Hardy based on what had been in the statement column and with no intention to cause Mr Hardy to express views he did not actually hold. We moved some of the text from the “statement” column into Mr Tucker’s comments box in deference to the fact that these were his views.”

1. 1. Issue 4.1 “Cause of damage” was revised to add the underlined words:

New cracks and the widening of existing cracks in the front elevations of the properties during the Policy Period was caused by (partial) collapse and/or subsidence and/or weaking (sic) or removal of support arising out of or in the course of or by reason of the carrying out of the Works to construct the basement to No 124.

1. 1. Mr Stockill explains that addition to the Statement column on the basis that Issue 4.1 “did not address the specific insured perils in the insuring clause (collapse subsidence etc) so we added these for the experts to consider“.

1. The revisions ultimately made were then passed by Mr Hardy to Mr Tucker in a draft 4 dated 12 October 2023. I make clear that not all of these revisions found their way into the later draft or the final version of the joint statement agreed on 3 November 2023 although some did (such as the revision to Issue 1.2 and 4.1 (including the typographical error).

THE APPLICABLE PRINCIPLES

1. 1. Paragraph 13.6.3 of the TCC Guide, to which reference has already been made, states:

“Whilst the parties’ legal advisers may assist in identifying issues which the statement should address, those legal advisers must not be involved in either negotiating or drafting the experts’ joint statement. Legal advisers should only invite the experts to consider amending any draft joint statement in exceptional circumstances where there are serious concerns that the court may misunderstand or be misled by the terms of that Joint Statement. Any such concerns should be raised with all experts involved in the joint statement.”

1. 1. In Imperial Chemical Industries Ltd v. Merrit Merrall Technology Ltd [2018] EWHC 1577 (TCC) at [237] Fraser J (as he then was) stated:

“The principles that govern expert evidence must be carefully adhered to, both by the experts themselves, and the legal advisers who instruct them. If experts are unaware of these principles, they must have them explained to them by their instructing solicitors. This applies regardless of the amounts at stake in any particular case, and is a foundation stone of expert evidence. There is a lengthy practice direction to CPR Part 35, Practice Direction 35. Every expert should read it. In order to emphasise this point to experts in future cases, the following points ought to be borne in mind. These do not dilute, or change, the approach in The Ikarian Reefer. They are examples of the application of those principles in practice.

1. Experts of like discipline should have access to the same material. No party should provide its own independent expert with material which is not made available to his or her opposite number.

2. Where there is an issue, or are issues, of fact which are relevant to the opinion of an independent expert on any particular matter upon which they will be giving their opinion, it is not the place of an independent expert to identify which version of the facts they prefer. That is a matter for the court.

3. Experts should not take a partisan stance on interlocutory applications to the court by a particular party (almost invariably the party who has instructed them). This is not to say that a party cannot apply for disclosure of documents which its expert has said he or she requires. However, the CPR provides a comprehensive code and it may be that disclosure is not ordered for reasons of disproportionality. However, if documents are considered to be necessary, and they are not available (for whatever reason), then an opinion in a report can be qualified to that extent.

4. The process of experts meeting under CPR Part 35.12, discussing the case and producing an agreement (where possible) is an important one. It is meant to be a constructive and co-operative process. It is governed by the CPR, which means that the Overriding Objective should be considered to apply. This requires the parties (and their experts) to save expense and deal with the case in a proportionate way.

5. Where late material emerges close to a trial, and if any expert considers that is going to lead to further analysis, consideration or testing, notice of this should be given to that expert’s opposite number as soon as possible. Save in exceptional circumstances where it is unavoidable, no expert should produce a further report actually during a trial that takes the opposing party completely by surprise.

6. No expert should allow the necessary adherence to the principles in The Ikarian Reefer to be loosened.
It is to be hoped that expert evidence such as that called by ICI in this case, and also in Bank of Ireland v Watts Group plc, does not become part of a worrying trend in this respect. There are some jurisdictions where partisan expert evidence is the norm. For the avoidance of any doubt, this jurisdiction is not one of them. Not only experts, but the legal advisers who instruct them, should take very careful note of the principles which govern expert evidence.”

1. Before me there is no disagreement between the parties as to these principles or their application. The wording of paragraph 13.6.3 is clear. Nevertheless, Mr Stockill’s evidence is that there had been a failure to understand the applicable rules and guidance for which he apologised unreservedly to both the court and AXA XL.

WHAT HAPPENED IN THE CURRENT CASE

1. 1. What is clear from the correspondence is that PMC believed it was permissible to amend the draft statement where it was thought the content did not reflect the pleaded issues and said the same to RPC (see for example, paragraph 8 of the letter of 16 January 2004). Such a belief, however misguided, is not the same as a deliberate and knowing disregard of the applicable principles.

1. 1. Mr Stockill further states that whilst in acting as it did PMC did not intend to have any impact on the substance of the views of Mr Hardy or his independence, he accepts the Court could not now be satisfied as to Mr Hardy’s independence. On the evidence before the court it is clear that it cannot be satisfied as to the independence of Mr Hardy in the joint statement process, however I should make clear that I have no evidence before me from Mr Hardy himself.

1. 1. The deletion of metadata is explained as occurring under time pressure in circumstances where the wish was not to share comments with others. In particular the identification that text had been added at the suggestion of PMC was sought to be avoided. In so doing, Mr Stockhill makes clear this is neither his common practice nor that of the associate who wrote the e-mail of 12 October 2023 and neither can recall ever having done so before. Nevertheless such conduct was thought at the time to be justified as the comments were regarded as privileged in any event. As Mr Stockill states in his witness statement “We also did not wish to be conspicuous about our involvement because we did not want to turn the joint statement process in a lawyer led process.”

1. It must be observed that the actions taken had precisely (and predictably) the very consequence Mr Stockill was striving to avoid. The revisions made caused Mr Tucker to be understandably concerned as to the joint statement process. The consequence of this was the involvement of the parties’ legal representatives addressing the joint statement process leading to the current applications before the court.

THE PRINCIPLES RELATING TO CHANGE OF EXPERTS

The judge carried out an extensive review of the authorities and principles relating to change of experts.

1. 1. What divides the parties are the circumstances in which permission should be given for a replacement expert and the conditions to be attached to any such permission. In addressing these issues a number of authorities were cited, most were directed to the conditions to be attached to any permission to change experts. I address them chronologically.

1. 1. In Edwards-Tubb v. JD Wetherspoon plc [2011] EWCA Civ 136 the Court of Appeal imposed conditions on a claimant who wished to change expert from the expert originally retained for the purposes of the pre-action protocol for personal injury claims. Having first concluded that there was no difference between a change in expert pre-issue (as part of the pre-action protocol procedure of co-operation) and post-issue, Hughes LJ stated, at paragraph 31 :

“For these reasons I would hold that the power to impose a condition of disclosure of an earlier expert report is available where the change of expert occurs pre-issue as it is when it occurs post-issue. It is of course a matter of discretion but I would hold that it is a power which should usually be exercised where the change comes after the parties have embarked upon the protocol and thus engage with each other in the process of the claim.”

1. 1. In that case the reason for the change of expert was not clear and as the Court of Appeal noted it was not permissible to infer at trial that the earlier report was unfavourable to the claimant if the claim for privilege in the earlier report was successful.

1. 1. As I have observed the claimants have already waived privilege in respect of such of the joint statement process as the claimants’ consider necessary to deal with the applications.

1. 1. In Adams v. Allen & Overy and Others [2013] EWHC 4735 (Ch) the claimants’ allocation questionnaire identified an expert different from the chartered surveyor originally retained. As part of the pre-action process, that earlier expert, Mr Smith, had also prepared a “second and rebuttal commentary.” In the defence of the second and third defendants Mr Smith was expressly referred to and his evidence described as “fatally flawed”. Mr Smith subsequently declined to act with the necessity for the claimants to retain a new expert.

1. 1. In that case there was no evidence that the expert’s unwillingness to continue was anything other than genuine and in particular, it was not a mask for some ulterior reason on the part of the claimants’ legal team to be rid of him as an expert. Against that background, Foskett J considered whether there was anything else that Mr Smith or the claimants’ legal team should convey to the defendants’ legal teams as a condition of granting permission. As the Court observed, the reports had already “been revealed“. At paragraph 49 the court concluded:

“I do not think it would be right to make it a condition of permission that all communications between him and the claimants’ legal team should be revealed. I cannot see how, even if revealed, they could properly deployed in the trial process. Given the critical scrutiny to which Mr Smith’s views have been subjected it is unlikely in the extreme that either defendant would wish to call him in support their cases. This is not a case where a party has deliberately not sought to rely on an expert view that is favourable to that of the opposing party, who then wishes and is entitled to put the report before the court under CPR Part 35.11.”

1. 1. In Murray v. Devenish [2017] EWCA Civ. 1016 the Court of Appeal was considering a case where the claimant appellant, or more particularly its counsel, had lost confidence in the retained expert. At first instance the Judge refused permission to change experts having regard to the proximity of the trial date and the claimant’s previous conduct of the proceedings. In the event, once permission to appeal was granted, the claim was stayed and the trial date vacated until determination of the appeal.

1. 1. Having concluded that he would not have interfered with the case management decision made by the Judge at first instance as it was a decision he was entitled to reach, Gross L.J. noted that the position before the Court of Appeal was different in that there was no new trial date. In those circumstances, whilst dismissing the appeal, the Court of Appeal gave permission for the replacement expert subject to disclosure of previous reports.

1. 1. In reaching the same conclusion Underhill L.J. did not regard this as a case of expert shopping in the pejorative sense and whilst stating that he would not necessarily have reached the same conclusion as the court at first instance, it could not be said that the decision was not open to him.

1. 1. The decision of HHJ Stephen Davies in B.D.W. Trading Ltd has been referred to above. In that case it became apparent during the evidence given at trial that the defendant’s expert had made changes to the first draft of the Joint Statement as a result of comments and feedback received from the defendant’s solicitors.

1. 1. Against that background HHJ Stephen Davies concludes:

“19. However, it was plain to me having heard him give evidence that Dr Tonks was genuinely unaware that his conduct in this respect was inappropriate. Furthermore, I am quite satisfied that there is no basis for considering that he had modified in any significant way the substance of his opinion as discussed with Mr Waite [the claimant’s expert] as a result of his contact with and feedback from IGL’s solicitors. My only qualification to that is that I am satisfied that he added to his opinion in section 14 of the Joint Statement, in relation to the specific issue as to whether or not the investigation undertaken by IGL was a “main investigation” as defined by the relevant Code of Practice (as to which see below), as a result of feedback from IGL’s solicitors.

20. Nonetheless overall Dr Tonks’ evidence seemed to me to be balanced and realistic and I tend to accept his views.”

1. 1. In the Dana UK Axle Ltd v. Freudenberg FST GmbH [2021] EWHC 1413 (TCC) an application was made on Day 7 of the hearing to exclude the defendant’s technical expert evidence. The basis of the application was the discovery of numerous breaches by the defendant’s three experts of CPR Part 35 and the 2014 Guidance for the Instruction of Experts in Civil Claims. These breaches were particularly concerning given that in granting relief from sanction for the late service of the defendant’s three technical expert reports, O’Farrell J imposed conditions. These conditions comprised the provision of full details of all materials provided to those experts by the defendant’s solicitors and the defendant itself, disclosing all documents produced by or provided to each experts during any site visit (including notes taken) and identifying the source and details of the data and other information relied on in support of each proposition/opinion. Those conditions were, in the event, not complied with.

1. 1. Having established the extent of the non-compliance Joanna Smith J refused permission to rely on the technical expert reports in circumstances where the defendant’s failures to meet the conditions imposed by the PTR Order meant it did not have permission. It is clear from the judgement that the court considered there was a lack of candour in the responses to earlier enquiries directed to the conditions and the extent to which they had been complied with. In her concluding paragraph Joanna Smith J states :

“94. The provision of expert evidence is a matter of permission from the Court not an absolute right (see CPR 35.4(1)) and such permission pre-supposes compliance in all material respects with the rules. I agree with Mr Webb’s submission that the use of experts only works when everyone plays by the same rules. If those rules are flouted, the level playing field abandoned and the need for transparency ignored, as has occurred in this case, then the fair administration of justice is put directly at risk.”

1. 1. In Rogerson v. ECO Top Heat Power Ltd [2021] EWHC 1807 (TCC) Mr Alexander Nissen QC, sitting as a Judge of the High Court provided a helpful review of the authorities on changing experts and the imposition of conditions. In that case he concluded that the defendant was seeking to call a different expert “for a reason which I infer to be or at least has the appearance of expert shopping”. As a result, when giving permission to change experts he imposed wide-ranging conditions of disclosure extending to reports, letters and attendance notes from the previous expert to the defendant, its solicitors and others and attendance notes by the defendant’s solicitors setting out or referring to the expert’s views on causation.

1. 1. Patricia Andrews v. Kronospan Ltd [2022] EWHC 479 was a case where the claimant’s solicitors had commented on drafts of an expert joint statement provided to them by the claimant’s retained expert for the purpose of soliciting their assistance. Senior Master Fontaine concluded that the expert’s approach and acted in a way which “strongly suggests he regarded himself as an advocate for the Claimants, rather than as an independent expert whose primary obligation is to the court” (paragraph 31 of judgment refers).

1. 1. As in the present case, the Court had no evidence from the expert as to the reasons for his conduct (whether he was unaware of his obligations as an expert and if so, why, or whether he was aware, in which his case his reasons why he thought it was appropriate to transgress those obligations).

1. 1. Having found that she had no confidence in the expert’s ability to act in accordance with his obligations as an expert witness the claimants’ permission to rely on his evidence was revoked. In granting permission for a replacement expert and applying the overriding objective Senior Master Fontaine noted that the trial date was not in jeopardy because no trial date had been set. Account was also taken of the fact that the claim was one in nuisance where the claimants would, if successful, seek an injunction or declaration as well as damages so they would not be fully compensated by a claim against their solicitors (paragraph 35 refers).

1. 1. In The University of Manchester v. John McAslan & Partners Ltd and Others [2022] EWHC 2750 (TCC) Mr Roger ter Haar KC sitting as a Deputy High Court Judge provides an extensive and helpful review of the authorities on conditions to be attached when granting permission to change experts. In noting the judgment of Stuart-Smith J in Vilca v. Xstrata Ltd [2017] EWHC 1582 (QB) he sets out at paragraphs 26 and 27 addressing those situations where there is a power to impose conditions (the emphasis is added by Mr ter Haar KC):

“26. The second question, which arises if the court has determined that it has case management powers, is how they should be exercised on the facts of the particular case. I have already said that they should always be exercised in accordance with the overriding objective. The cases to which I have referred above do not establish some different principle. What they establish is that the court will always have regard to the possibility of undesirable expert shopping and the instinctive desire for the court to have full information (with the associated desire of the other party to be assured that the court’s process is not being abused). The Court of Appeal has consistently said (albeit in slightly different terms) that the object of imposing a condition that reports of previous experts should be disclosed is to prevent expert shopping and to ensure that full information is available.

27. I do not exclude the possibility that there might be cases where the two limbs of the rationale identified by the Court of Appeal might be absent and yet there might be some other reason, specific to the facts of that case, which require or justify the imposition of the condition of disclosure. But I do not accept that it is established either on principle or by authority that there is a rule of practice or procedure requiring that the condition be imposed if the two limbs of the rationale are absent and there is no other good reason to impose it. Furthermore while the usual course where the two limbs of the rationale are present will be that the conditions will be imposed, it is not inevitable. In my judgment the Court should in all cases apply its mind to what course will best meet any concerns that may exist and best advance the overriding objective. This requires the Court to consider in any given case what weight, if any, is to be given to those factors that might support the imposition of conditions as well as to those which tend in the opposite direction.”

1. 1. In that case the court concluded that the interests of the defendants were sufficiently protected by the disclosure already given. In The University of Manchester there had been a change of position and the claimant did not wish to call evidence from the experts sought to be replaced. The court concluded that the courts discretion to impose conditions was engaged:

“75. That said, the case is a long way from the sort of abuse or possible abuse of the expert witness process in respect of which the authorities cited above show that the Court is astute to guard its procedure. What Clyde & Co’s letter shows is an openness which runs contrary to the hidden abuse which “expert shopping” will typically involve.

76. On the other hand, it is right that their evidence should be available to the Court, the Defendants and the Third Party, not because of suspicions of expert shopping, but because it is or may be relevant evidence of primary facts.

77. That legitimate interest is, in my judgment, satisfied on the facts of this case by the disclosure already given.”

1. 1. The final authority to which I was referred is the decision of O’Farrell J in Avantage (Cheshire) Ltd and Others v. GB Building Solutions Ltd (in administration) and Others [2023] EWHC 802 (TCC). That case concerned an application to call a new expert, Dr Neil Ketchell, in place of a forensic scientist and a fire engineer. The necessity to replace the forensic scientist was due to her serious illness which prevented her participation in the proceedings. Whilst concerns were raised as to the reasons for replacing the fire engineer with suggestions of expert shopping, permission was given when it became clear that the claimants were not happy with their original expert and wanted to have permission to rely on an expert in whom they had confidence. The detail of that lack in confidence was not before the court however it was accepted that this would be apparent should disclosure of the experts’ reports be made a condition of granting permission to change experts. Such a condition was imposed however the court refused the application to disclose attendance notes of discussions with that expert:

“39. However, I do not consider that this is a case in which the claimants’ solicitors should be required to disclose attendance notes of their discussions with Mr Wise. Such an order will cause practical difficulties in producing redacted versions of the documents that were of any probative value. Further, such an order would constitute an unnecessary invasion of the claimants’ privilege in circumstances where there is no suggestion of any culpable behaviour on the part of the claimants or their experts; they are simply unhappy with Mr Wise as an expert.”

APPLYING THOSE PRINCIPLES TO THE CURRENT CASE

The judge found that the trial date could still be met if the claimant were given permission to rely on a new expert.  He granted permission.

1. 1. I deal first with the question of permission for a replacement expert. I do so on the basis that the facts set out above disclose substantial and impermissible interference in the expert statement process by those acting for the claimants. Such interference is clearly contrary to both authority and the applicable guidance issued by the TCC.

1. 1. When considering the question of a replacement expert I have regard to the overriding objective of enabling the court to deal with cases justly and at a proportionate cost. This includes dealing with cases in ways which are proportionate to the amount of money involved, ensuring a case is dealt with expeditiously and fairly allocating an appropriate share of the court’s resources and enforcing compliance with rules, practice directions and orders.

1. 1. I accept Mr Hanna’s submission that there is no reported decision on all fours with this case. Every decision is fact sensitive and whilst there can be no excuse for the conduct of the claimant’s solicitors, justice is best served by maintaining the trial date if at all possible and ensuring that AXA XL has sufficient disclosure to understand Mr Hardy’s views, however unlikely it is that AXA XL would wish to deploy his report as evidence at trial pursuant to the provisions of CPR part 35.11.

1. 1. In that regard, if the consequence of a replacement structural engineering expert had been to lose the trial date this September then, for that reason alone, I would not grant permission. However as I discuss below, that is not the case here and perhaps understandably the claimants have provided revised directions for the structural engineering evidence which keep the trial date.

1. 1. I consider permission should be given for Mr Tant to be an expert witness in the field of structural engineering. My reasons for doing so are:

a. It is not disputed that structural engineering evidence is central to the issues in these proceedings. Without it, the claimants would likely be at a very significant and possibly insurmountable disadvantage in establishing its case as to liability under the policy.

b. As already observed, the expert evidence can be timetabled in a way which preserves the trial date and does not cause unfairness to AXA XL. It is likely that given the steep learning curve Mr Tant will not be able to deal with issues in as greater detail as he otherwise may have wished. However, that is a risk that the claimants are prepared to run. In this regard I have considered the decision of Coulson J (as he then was) in Fitzroy Robinson Ltd v. Mentmore Towers Ltd [2009) EWHC 3070 (TCC). In that case the instruction of a new expert had caused delay to the preparation of the joint statement and an adjournment was sought. In concluding a fair trial was not impossible because of limited time for preparation of expert evidence, Coulson J concluded that the experts were on an equal footing and if one was in a better position than the other it was only because of the defendant’s deliberate dis-instruction of its expert.

c. Whilst I do not consider PMC have been open from the outset as to the extent of the interference in the joint statement process, the limited evidence before me does not support a conclusion that there was an attempt to change the opinion of Mr Hardy on the central issues in dispute. Mr Turner highlighted the fact that there was uncontradicted evidence from Mr Stockill supported by a statement of truth that he believed the purpose of the revisions was to more accurately reflect the views of Mr Hardy and ensure the issues addressed were within the parameters of the pleaded case. Mr Hanna does not submit to the contrary observing that he cannot know the intention of Mr Stockill beyond what is stated in his witness statement. He does however submit that the revisions do change the views expressed by Mr Hardy in a manner that is more helpful to the claimants. I do not reach that conclusion on the documents before me. As Mr Turner demonstrated, the changes can be seen as seeking to reflect, however misguidedly, what were believed to be the views of Mr Hardy. I further note Mr Stockill’s evidence that the claimants remain of the view that Mr Hardy supports their case.

d. The conduct complained of was not that of the claimants but their solicitors. I accept Mr Turner’s submission that if permission for a replacement expert is refused, the claimants may consider its interests are not best served by continuing to retain PMC. Further, should they change representation any change of solicitors may have an effect on the timetable, depending on the view the Court took on the evidence supporting such a decision to change representation.

e. There has been a full and frank admission by PMC and an apology to the court and AXA XL.

1. 1. Mr Turner also observes that any claim against PMC would not be straightforward in that it would be in essence a claim for a “loss of a chance”. I accept this and that such a claim would take up further Court resources however on its own I do not consider this a sufficient reason to grant permission. It is not unusual for the conduct of legal representatives to result in serious sanction against their client, yet no authority has been cited which suggests that this is a material consideration militating against the imposition of a sanction that would otherwise be justified. It can be a relevant factor for consideration, as in Patricia Andrews and ors where the relief sought included an injunction or declaration as well as damages so that the claimant would not be fully compensated by a claim against their solicitors.

The conditions to be attached to permission for a replacement expert

1. 1. As noted above, in addressing the applications there has been a significant waiver of privilege by the claimants. This extends to the draft joint statements and the comments of PMC on the same. AXA XL seeks further disclosure beyond this. In his oral submissions Mr Hanna confirmed this was limited to attendance notes and e-mail correspondence with Mr Hardy (suitably redacted to remove reference to other matters outside the scope of his evidence).

1. To the extent necessary to decide, I do not consider this is case of “expert shopping” in any pejorative sense. As I have observed, it is Mr Stockill’s evidence that he considers Mr Hardy supports the claimants’ pleaded case and that the proposal to replace him was not made lightly given his extensive knowledge having been involved for almost 5 years. Rather it was made to provide a fair and swift resolution of any concerns of non-compliance and the independence of Mr Hardy’s evidence. I accept that is Mr Stockill’s view. In any event, I consider that the extent of disclosure given, in addition to Mr Hardy’s report, meets the concern to ensure that full information is available to the claimants consistent with the authorities to which I have already referred. I am not persuaded that the further disclosure sought is necessary. In particular, even assuming there has been a material change in Mr Hardy’s support of the claimants’ case (which has not been demonstrated), I do not accept that the views expressed by Mr Hardy in the draft joint statements prior to revision cannot be taken to be his true objective views. Further, such additional disclosure has the potential for difficulty identified by O’Farrell J in Avantage.

COSTS

1. The costs consequences of the grant of permission for a replacement expert are largely agreed. When considering the appropriate costs order to reflect the additional costs caused by the engagement of a new structural engineering expert at this late stage I have been guided by the approach of Foskett J in Adams. I recognise that there may well be material in Mr Tant’s report which it would have been necessary to consider in any event and so, as in Adams, “I do not think it is as simple as simply paying the sums said…to have been expended in considering and answering [the new report] ” (paragraph 48 of the judgment refers). On the limited information before me, in addition to paying the costs thrown away as a consequence of the permission for Mr Tant, I consider that the appropriate order is that claimants shall also pay 30% of the costs of the AXA XL considering the structural engineering joint statement and expert report of Mr Tant.