Expert Witness: The Importance of Being Independent

Related Sector: Expert Witness

In the recent case of Patricia Andrews and others v Kronospan Ltd[2022] EWHC 479, the Senior Master has given judgment on the defendant’s application in the course of managing group litigation, prohibiting the claimant from relying upon their expert’s evidence (worth £250,000), due to his inability ‘’to act in accordance with his obligations.’’

Background

The case concerned a group action relating to a nuisance claim, arising out of the emission of dust, noise and odour from the Defendants’ wood processing and wood product manufacturing plant. Both parties were given permission to appoint their own experts in dust dispersion modelling and dust analysis. Expert reports were exchanged in April 2021 and a series of joint discussions began in May.

It later emerged that the claimant’s expert had been in communication with his instructing solicitors from May to November 2021, during which he had sent them draft versions of the joint statement and sought their input, and the solicitors had made suggestions on the substantive content of the statement.

The Master’s Order

The claimants accepted that it was wrong for their expert to solicit input from their instructing solicitors during the process of drafting a joint statement and wrong for their solicitors to provide it; that to do so was a “serious transgression” of the rules.

As Senior Master Fontaine put it: “The basis upon which the claimants received permission to rely on [their expert witness], namely his duties under CPR35.3, PD35 paragraphs 2.1 and 2.2, has been undermined” and therefore ‘’…the court has no confidence in [the expert’s] ability to act in accordance with his obligations as an expert witness’.

Accordingly, the Senior Master revoked the order giving the claimants permission to rely on the expert evidence in question but allowed them to instruct a new expert instead.

What are the key takeaways from this case?

This case provides a timely warning for both experts and their instructing solicitors on the limits imposed by the law on their working relationship. Of course, it is perfectly acceptable (and encouraged) that experts remain in constant dialogue with their instructing solicitors regarding the content and nature of an opposing party’s expert report, as well as discussing logistical matters such as court appearances and filing deadlines. But it is essential that once the experts have begun their joint discussions, they are siloed from their instructing solicitors and left to prepare their joint statement without any outside influence.

The principle that experts are not to discuss or disclose the draft of their joint statement is embedded in the terms of the rules that deal with experts’ discussions (CPR35.12; PD35, paragraph 9; the Guidance, paragraphs 70 - 83), as well as in the nature of the expert’s duty to the court. It is all too easy to be led astray by an understandable, and wrong, intention to be helpful to the instructing party; indeed, Master Fontaine observed that the expert in question’s approach “strongly suggests he regards himself as an advocate for the claimants rather than as an independent expert whose primary obligation is to the court”.

There is one narrow exception, only available in the Technology and Construction Court (the “TCC”). In BDW Trading Ltd v Integral Geotechnique (Wales) Ltd [2018] EWHC 1915 (TCC) the judge commented that instructing solicitors might be permitted to see a draft of a joint statement before final signature, but solely to ensure that it has not been “infected by some material misunderstanding of law or fact”. However, this must be done (and documented) openly so that both parties and their representatives can contribute, and everyone can see what discussions took place.

Appointed experts are assumed to have read and understood the terms of their appointment, including their duty to the court and are expected to comply with their obligations at all times. This case emphasises the value of regular and up to date professional training to be an expert witness, to ensure that they are aware and fully cognisant of their duty and its application, particularly with regard to their role in joint expert discussions and the drawing up of the joint statement.

Author: Nicholas Deal, Lead Trainer and Subject Matter Expert
This article was first published on Wednesday 23 March 2022