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Travelex liquidation: Court appoints additional conflict liquidators
Daniel Sejas
Issues with expert evidence can have a profound impact on the credibility of a party’s case, and consequently the likelihood or not of a party succeeding at trial. In this article we discuss some recent case law which highlights the need for parties to carefully comply with their procedural obligations regarding expert evidence, namely Part 35 of the CPR (“Part 35”) and the accompanying Practice Direction, to avoid such risks.
An important aspect of the requirements of Part 35 is the need for parties’ lawyers to adequately supervise the communications with their chosen experts, and ensure that the experts understand their obligations to the court. Maintaining control over the instruction of experts – including throughout the trial preparation period – is critical to ensuring that the expert evidence can be substantively relied upon at trial.
Experts in the witness box
As outlined in Part 35, expert evidence is typically given by written report unless the court directs otherwise. It is likely that experts will give oral evidence at trial in more complex, significant and/or high-value claims.
Single joint experts do not normally give oral evidence at trial but if they do, all parties may ask them questions. Where each party has their own expert, the usual practice is for them to give oral evidence at the same time as that party’s other witnesses.
However, the court also has the power to order that experts in a similar discipline should give evidence at trial concurrently, in a practice known as “hot-tubbing”. In these circumstances the experts are questioned by the judge first, and then by the parties’ counsel teams. The process is intended to be flexible, but is particularly suited to cases where there is serious technical complexity or where the areas of disagreement between the experts are limited.
A note of caution
The High Court case of Dana UK Axle Ltd v Freudenberg FST GmbH highlights the risks involved when parties fail to adequately supervise and control the production of expert evidence in preparation for trial.
In this case there were significant procedural failures by the Defendant in relation to its three expert reports, including that they referred to documents and other records which had not been disclosed to the Claimant, such that the Claimant was significantly disadvantaged when attempting to understand the reports. This was particularly serious as there was no factual evidence from the Defendant on those issues, and so the Claimant was reliant on disclosure and expert evidence to understand the Defendant’s case.
The Defendant was ordered to correct the position and to serve Part 35 compliant expert reports. The Defendant purported to do so in respect of two expert reports, but not the third. In the end, the Claimant was not satisfied that the order had been complied with.
On the first day of trial, the Judge ordered the Defendant’s solicitors to produce a witness statement identifying the documents and information that its experts had access to in preparing their reports.
The solicitors produced two such witness statements, which were also accompanied by new disclosure. The new disclosure evidenced what the Claimant’s counsel described as “an uncontrolled and unsupervised free flow of information” between the Defendant and its experts, without any solicitor involvement, over the critical period between expert meetings and the signing of the experts’ joint statement. During this period the experts should have effectively been in “purdah” and should not have been communicating directly with their client. This led to an application by the Claimant during trial to exclude the Defendant’s technical expert evidence on the basis of breaches of the CPR, which was granted by the Judge. The judgment highlights the requirement to “maintain appropriate levels of supervision and control” over experts and explain to them their duties to the Court.
The case is a stark reminder of the need to comply with procedural obligations in relation to expert evidence. Substantial and sustained procedural failures might lead to parties being precluded entirely from relying upon their expert evidence at trial and/or the credibility of a party being significantly damages.
Conclusion
In summary, expert evidence can be critical to the success of a party’s claim. The exclusion of expert evidence can be costly and have a significant impact on the parties’ position at trial. To avoid the risk of an expert report being excluded, it is important for the parties to ensure appropriate supervision over their chosen experts and compliance with their procedural obligations for the production of expert reports. Solicitors must take care to explain an expert’s obligations under Part 35, even where that expert is understood to be experienced in court procedure.
About the authors
Phoebe is an Associate in the Dispute Resolution team.
Isabella McDonnell is a trainee solicitor at Kingsley Napley and is currently in her second seat with the Dispute Resolution team.
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