Expert witnesses: Follow the rules, every step of the way
Edward Foyle, Partner and Huw Wilkins, Senior Associate, Fenwick Elliott
THE provision of expert evidence is not an absolute right. One can only rely on expert evidence with permission from the court1. That permission presupposes compliance in all material respects with the applicable rules.
In his judgment in Imperial Chemical Industries Limited v Merit Merrell Technology Limited (No.2 Quantum) (2018) EWHC 1577 (TCC), Mr Justice Fraser concluded his analysis of the expert evidence saying:
“[ I]t 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 advisors who instruct them, should take very careful note of the principles which govern expert evidence.”
The classic statement of the duties and responsibilities of expert witnesses is found in the case of The Ikarian Reefer (2000) 1 WLR 603. In his judgment in that case, Mr Justice Cresswell identified seven underlying principles, the first of which was ‘expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation’.
The seven principles identified by Mr Justice Cresswell are largely reflected in part 35 of the Civil Procedure Rules2 (CPR) and its associated practice direction which are essential reading for any expert or party instructing an expert. Further direction can be found in the guidance for the instruction of experts in civil claims 2014 and in the relevant court guides (e.g. the TCC guide).
Rule 35.3 of the CPR provides that an expert’s duty is to help the court on matters within their expertise; that duty overrides any obligation to the person from whom an expert has received instructions or by whom they are paid3. This rule applies throughout an expert’s involvement in litigation. There are, however, an increasing number of judgments in which experts have been criticised for failing to comply with their duties to the court.
This article outlines an expert’s duties at the various stages of litigation, and reviews recent judgments in which experts (along with their clients and instructing solicitors) have been criticised for failing to comply with those duties. It also includes details of sanctions available to the court if experts (and their clients) do not comply with their duties.
Instructing experts: Provision of information
The CPR is a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost4. Dealing with a case ‘justly and at proportionate cost’ includes, so far as is practicable, ‘ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence’5. The principle of an ‘equal footing’ is reflected in the guidance for the instruction of experts in civil claims 20146 which provides that experts should try to ensure that they have access to all relevant information held by the parties and that the same information has been disclosed to each expert in the same discipline.
The recent judgment in Dana UK Axle Ltd v Freudenberg FST GmbH (2021) EWHC 1413 (TCC), is a particularly extreme example of a party and its experts not adhering to this rule. The defendant’s experts had participated in site visits without the same opportunity being afforded to the claimant’s experts. The claimant’s experts were not even made aware that any site visits had taken place until some were referred to in the experts’ report; during the course of the trial itself it emerged that even more site visits had taken place without their knowledge. To compound matters, very limited records were kept of those site visits.
There were only a few photographs, but no notes of the site visits and of interviews that took place during were kept; one of the defendant’s experts is said to have discarded his notes once the information was transferred into his draft report.
Depriving an opponent’s expert of information (in the form of documents or access to the site) undermined the overriding objective and the principle that parties should be on an ‘equal footing’7. This was one of a number of breaches of the experts’ duties in Dana v Freudenberg (2021) EWHC 1413 (TCC), which led Mrs Justice Joanna Smith to withdraw the defendant’s permission to rely on its expert evidence.
Production of expert reports
Rule 35.10 of the CPR requires that an expert’s report must comply with the requirements set out in practice direction 35 and must:
- Include a statement that the expert understands and has complied with their duty to the court and is aware of the requirements of part 358, practice direction 35 and the guidance for the instruction of experts in civil claims 20149.
- State the substance of all material instructions, whether written or oral, on the basis of which the report was written10.
- Practice direction 35 sets out more detailed requirements as to the form and content of an expert’s report including, for example, a requirement to give details of any literature or other materials which have been relied on in making the report. It also refers to the guidance for the instruction of experts in civil claims 2014.
In Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd (2018) EWHC 1577 (TCC) the parties appointed quantity surveying experts to value the works as at the date of termination. By using actual cost, rather than a schedule of rates used on the project and agreements made between the contractor and project manager, Mr Justice Fraser considered the approach of the claimant’s expert to be a ‘method whereby one works towards a desired result, rather than having the end result emerge from the overall components of the valuation exercise’.
Discussions between experts are a means of trying to narrow the issues between the parties. Unless ordered by the court, or agreed by all parties and the experts, neither the parties nor their legal representatives may attend those expert discussions.Mr Justice Fraser considered this was not an approach that an independent expert should adopt. Mr Justice Fraser therefore concluded that the expert’s report demonstrated a failure to grasp the essential requirements of his task – to perform an independent valuation of the works, and not argue the case for, or adopt points in a partisan fashion11. Such an approach is incompatible with the statement required in each expert report that, amongst other things ‘the expert understands and has complied with their duty to the court12.
As a result of flaws in the claimant’s expert evidence13, when it came to the judgment, where there was a disagreement between the experts, the defendant’s expert evidence was preferred.
In Dana UK Axle Ltd v Freudenberg FST GmbH (2021) EWHC 1413 (TCC), the claimant identified certain defects in the expert reports served (late) by the claimant including that:
- The experts had not identified in their reports the documents on which they had relied or provided a list of documents provided to them (contrary to paragraph 55 of the guidance for the instruction of experts in civil claims 2014).
- No documents (photographs, notes, etc.) had been provided evidencing the information collected during site visits.
- When referring to data or other information, the expert reports did not always provide reference to the document or source of data relied upon, thereby causing prejudice to those trying to read and understand those reports.
The court ordered that the defendant serve revised expert reports fully complying with the CPR and guidance by remedying these defects. The defendant served revised reports but the claimant maintained that those revised reports did not comply either with the terms of the order or the CPR. The claimant continued to make efforts to resolve the issues (through correspondence, requests for further disclosure and by submitting written questions to the experts under CPR rule 35.6) but to no avail and, on day seven of the trial, made an application to exclude the defendant’s expert evidence.
Cross-examination is the stage of proceedings in which an expert’s views are tested the most, under the glare of the presiding judge. An expert’s performance under crossexamination will be crucial in establishing whether their evidence is reliable.The court considered the defects in the experts’ reports against the express requirements of the order previously made in that case and more broadly against the requirements of the CPR. Mrs Justice Joanna Smith made a number of criticisms of the defendant, their experts and the solicitors with conduct of the litigation, including that there had been a free flow exchange of information between the experts and the defendant with apparently no, or very little, oversight from the instructing solicitors14.
Consequently, she could not be satisfied that certain requirements, including the requirement in CPR 35.10 that ‘the expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written’, had been complied with.
Mrs Justice Joanna Smith therefore withdrew permission for the defendant to rely on their expert evidence.
Joint statements
Discussions between experts are a means of trying to narrow the issues between the parties. The rules governing those discussions are set out in paragraph nine of practice direction 35. Unless ordered by the court, or agreed by all parties and the experts, neither the parties nor their legal representatives may attend those expert discussions. The experts record the outcome of their discussions in a joint statement, in which they must give their own opinions to assist the court and the experts do not require authority from those instructing them to sign their joint statement.
Patricia Andrews & Ors v Kronospan Ltd (2022) EWHC 479 (QB) concerned an application to revoke the claimants’ permission to rely upon expert evidence after it had become apparent that the expert in question had been in contact with his instructing solicitors during the period of the experts’ discussions. The 14 See also reference to this case in the sections of this article dealing with (i) the provision of information and (ii) joint statements expert had provided his instructing solicitors with drafts of the joint statement who had, in turn, provided comments on that draft including comments and suggestions on issues of substance. The court referred to the expert’s overriding duty to the court set out in the CPR15, the terms of the accompanying practice direction16 and the TCC guide which provides that legal advisors ‘must not be involved in either negotiating or drafting the experts’ joint statement’.
The claimant acknowledged that there had been a serious transgression of these rules such that the only issue for the court to consider was what sanction to impose on the claimant. The court held that it had no confidence in the expert’s ‘ability to act in accordance with his obligations as an expert witness’ and that it was appropriate to revoke the claimant’s permission to rely on the expert’s evidence.
In Dana UK Axle Ltd v Freudenberg FST GmbH (2021) EWHC 1413 (TCC), the free flow exchange of information between the experts and the defendant (referred to above) continued between the time of the meeting between the experts and the signing of their joint statement. The court decided that although the TCC guide only referred to legal advisors not being involved in the negotiating or drafting of a joint statement, the same prohibition applied to the parties themselves.
Trial: Oral evidence
Cross-examination is the stage of proceedings in which an expert’s views are tested the most, under the glare of the presiding judge. An expert’s performance under cross-examination will be crucial in establishing whether their evidence is reliable. In Beattie Passive Norse Ltd & Anr v Canham Consulting Ltd (2021) EWHC 1116 (TCC), discussions between the experts had resulted in a large measure of agreement. However, there remained areas on which they were not agreed and upon which they were cross-examined. In his judgement, Mr Justice Fraser was critical of the claimant’s expert, and his evidence during cross-examination.
These criticisms included:
- He had constantly embellished and exaggerated his criticisms of the defendant.
- He constantly introduced new concepts or issues which had not been mentioned in his report or put to his opposite number in cross-examination (the previous day).
- He relied on material that had no relevance to the issues under consideration at the trial.
- He changed his agreement with, and reliance upon, the work of his colleague whose report and work had been included as an appendix to his own written report (and which he had expressly stated that he agreed with17). No explanation was given as to why he had changed his mind, which suggested to Mr Justice Fraser that the change was to suit the claimant’s case.
- He went further than was justified in his evidence. He was a structural engineer, instructed to give evidence on issues of structural engineering. However, he sought to give evidence on issues of geotechnical evidence on which he was neither instructed nor qualified.
- Comparing the parties’ experts, Mr Justice Fraser concluded:
“Mr Owain Evans gave me the impression that his evidence would have been exactly the same had he been instructed by the claimants. Mr Hughes, regrettably, did not, and in my judgment he constantly sought to advance the claimant’s case at the expense of expert objectivity.”
Given this finding, it is unsurprising that where the experts disagreed, Mr Justice Fraser preferred the evidence of Mr Owain Evans (the defendant’s expert).
Sanctions
The court has several sanctions available to it in the event that it finds an expert has breached their duties to the court.
- The judge may prefer the evidence of the expert who has complied with their obligations, over that of an expert who has not18.
- The expert’s evidence may be deemed inadmissible19 (either in full, or in part20, depending on the nature of the breach).
Many of the experts that are the subject of the decisions referred to in this article have been highly qualified and experienced experts, instructed by well known, and well-regarded firms of solicitors.In more extreme cases, there can be cost penalties against those instructing the expert (including a wasted cost order) or against the expert. In an unreported 2021 case in Liverpool County Court, Martine Robinson v Liverpool University Hospital NHS Foundation Trust v Dr Chris Mercier, the claimant withdrew her claim at the conclusion of evidence.
The defendant sought a third-party costs order against the claimant’s expert on the grounds that he should not have been giving evidence in the case and that he had an ongoing, and continuing duty to the court to ensure that he was the appropriate expert to assist the court which he failed to abide by until he gave his oral evidence at trial.
The court held it was wholly unreasonable and negligent for the expert to have accepted an instruction in a case for which he had no expertise and could not speak to any errors in the treatment given21. The court therefore awarded a third-party costs order against the claimant’s expert in the sum of £50,543.85 (representing the defendant’s costs in defending the claim from the outset of proceedings).
Conclusion
Many of the experts that are the subject of the decisions referred to in this article have been highly qualified and experienced experts, instructed by well known, and well-regarded firms of solicitors. For such experts, one would expect that compliance with basic expert duties should not be in issue. These cases provide a reminder that all experts (regardless of their prior experience) should familiarise themselves with the rules when they accept their first instruction and should refresh their memories of the rules frequently and regularly.
If an expert is considered not to have complied with their duties under CPR 35, their client’s case may fail – either because the opposing expert’s evidence may be preferred or, worse still, the client’s permission to rely on its expert evidence may be withdrawn. Where the expert’s non-compliance is recorded in the judgment, the expert’s career may be hindered by such judicial criticism.
As the cases demonstrate, the courts are becoming increasingly alive to, and frustrated by, experts who contravene the rules. Whilst the consequences of a failure to comply with expert duties can be significant, the courts may consider that further action is required to buck the ‘worrying trend’ identified by Mr Justice Fraser. With the courts having recently introduced new rules in respect of disclosure22 and witness statements23, perhaps a change to the rules in respect of expert evidence is the next revision to the CPR on the agenda.
Edward Foyle, Partner and Huw Wilkins, Senior Associate, Fenwick Elliott
1 CPR 35.4(1)
2 The Civil Procedure Rules are the procedural whose overriding aim is to enable the courts to deal with cases justly.
3 CPR 35.3
4 CPR 1.1(1)
5 CPR 1.1(2)
6 Paragraph 30
7 CPR 1.1(2)
8 CPR 35.10(1)
9 CPR 35.10(2). See also paragraph 3.2(9) of practice direction 35 and paragraph 3.3 of practice direction 35 which sets out the required form of statement of truth
10 CPR 35.10(3). See also paragraph 3. of practice direction 35 and paragraph 3.3 of practice direction 35 which sets out the required form of statement of truth
11 Practice direction 35, paragraph 2.2
12 Practice direction 35, paragraph 3.2(9)
13 The criticism referred to in this article is only one element of a long list of criticisms of ICI’s expert evidence in the case
14 See also reference to this case in the sections of this article dealing with (i) the provision of information and (ii) joint statements
15 CPR 35.3
16 Practice direction 35, paragraph 9.4
17 In both his expert report and his evidence in chief at the start of his oral evidence
18 See for example the case of ICI v Merit Merrell (2018) EWHC 1577 (TCC)
19 See for example the case of Dana UK Axle Ltd v Freudenberg FST GmbH (2021) EWHC 1413 (TCC)
20 If the expert’s breach is to have exceeded their expertise, that evidence may be excluded
21 The expert was a general dental practitioner and had no expertise in the examination of a patient prior to general anesthetic in a hospital setting
22 Practice direction 51U: Disclosure pilot for the business and property courts
23 Practice direction 57AC: Trial witness statements in the business and property courts