Court grants application for replacement expert after finding interference with expert process

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Authored by: Joseph Chung

In Glover v Fluid Structural Engineers and Technical Designers Ltd [2024] EWHC 1257 TCC, the court granted the Claimant’s application to replace its expert structural engineer, after finding that the Claimant’s solicitors had interfered in the expert process.  The court granted permission because the expert evidence in question was central to the issues in the proceedings and the replacement expert evidence could be timetabled in such a way as not to make it necessary to change the trial date.  The court made it clear that if the consequence of a replacement expert had been to lose the trial date then, for that reason alone, it would not have granted permission.

Background

The Claimants had commenced renovation works on their property, which resulted in damage to neighbouring properties.  The Claimants brought claims against a number of parties, including the original building contractor for the works and Fluid Structural Engineers and Technical Designers Ltd, the appointed structural engineers for the works. Other claims had been compromised and the Claimants now only proceeded against the 6^th Defendant (AXA XL), from whom they sought an indemnity under an insurance policy issued in their favour.  AXA XL relied on various exclusions in the XL policy which they said excluded liability for damage that was (i) the fault of the builder or designer; (ii) inevitable damage; (iii) recorded in a survey attached to the policy or (iv) due to works undertaken prior to the start of the policy.  Issues as to the cause, nature and extent of damage and when it occurred, were therefore central issues between the parties.   

AXA XL’s application

The court had given the parties permission to call expert witnesses on structural engineering and quantum. The Claimant appointed a Mr Hardy as their structural engineering expert and AXA XL had appointed a Mr Tucker.  A joint statement was produced by the experts which evolved through various drafts reflecting discussions between them.  Mr Tucker expressed concern to AXA XL’s solicitors (RPC) about what he believed to be significant changes to Mr Hardy’s views recorded in the latest version of the joint statement. His concern was that on the face of it, there appeared to have been involvement of the Claimant’s solicitors (PMC).  RPC raised these concerns by letter to PMC and PMC acknowledged that they had not been fully compliant with the relevant rules and guidelines, including paragraph 13.6.3 of the Technology and Construction Court Guide (TCC Guide) in relation to Experts Joint Statements, which provides:

“Whilst the parties’ legal advisors may assist in identifying issues which the statement should address, those legal advisors must not be involved in either negotiating or drafting the experts’ joint statement.  Legal advisors 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.”

In light of the above, the Claimant applied to change experts.

Changing Experts: The applicable principles

The parties disagreed about the circumstances in which permission should be given by the court for a replacement expert and the conditions to be attached to any such permission.  The court first dealt with the question of permission for a replacement expert and did so on the basis that the facts in this case disclosed substantial and impermissible interference in the expert statement process by those acting for the Claimants, which interference was contrary to both authority and applicable guidance issued by the TCC.

The court said that when considering the question of a replacement expert, it had regard to the overriding objective of enabling the court to deal with cases justly and at a proportionate cost.  This, it said, 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.

The court said that every decision is fact sensitive and whilst there could be no excuse for the conduct of the Claimant’s solicitors, justice was best served by maintaining the trial date if at all possible and ensuring that AXA XL had sufficient disclosure to understand Mr Hardy’s views, however unlikely it was that AXA XL would wish to deploy his report as evidence at trial.  In this regard, the court said that if the consequence of a replacement expert had been to lose the trial date then, for that reason alone, the court would not grant permission.  However, that was not the case here and the Claimants had provided revised directions for the structural engineering evidence which kept the trial date.

The court gave permission for a replacement structural engineering expert for the Claimants because:

• It was not disputed that structural engineering evidence was central to the issues in the proceedings and 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.

• The expert evidence could be timetabled in a way which preserved the trial date and did not cause unfairness to AXA XL.  Although likely that the new expert had a steep learning curve and would not be able to deal with issues in as greater detail as he would have otherwise may have wished, that was a risk the Claimants were prepared to run.

• The evidence before the court did not support a conclusion that there had been an attempt to change Mr Hardy’s opinion on the central issues in dispute.

• The conduct complained of was not that of the Claimants, but their solicitors. If permission for a replacement was refused, the Claimants may consider its interests were not best served by continuing to retain PMC and should they change representation, this may have an effect on the timetable, depending on the view the court took on the evidence supporting such a decision to change representation.

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

Conditions to be attached to permission for replacement expert

The court referred to the fact that in addressing the application, there had been a significant waiver of privilege by the Claimants, which extended to the draft statements and PMC’s comments on them.  AXA XL sought further disclosure beyond this, limited to the attendance notes and email correspondence with Mr Hardy (suitably redacted to remove reference to other matters outside the scope of his evidence).

The court was not persuaded that the further disclosure sought was necessary.  In particular, even assuming there had been a material change in Mr Hardy’s support of the Claimant’s case (which had not been demonstrated) it did not accept that the views of Mr Hardy expressed in the draft joint statements prior to the revision could not be taken to be his true objective views.  Further, such additional disclosure had the potential to cause practical difficulties in producing redacted versions of the documents that were of any probative value.

Comments

It is common for lawyers to comment on draft statements prepared by an expert witness.  This judgment is a helpful reminder that lawyers should be careful not to interfere with either negotiating or drafting the experts’ joint statement.  Although there is no TCC Guide in Hong Kong, the Hong Kong Court may still find the principles in the TCC Guide applicable.  Any interference with the testimony of factual or expert witness can amount to perverting the course of justice, which is a serious criminal offence.

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Joseph Chung

Partner | Litigation and Dispute Resolution

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