The joint statement – another fine mess…

Related Sector: Expert Witness, Witness Familiarisation

Glover v Fluid Structural Engineers & Others [2024] EWHC 1257 (TCC) joins a growing list of cases on the topic of lawyers suggesting amendments to the experts’ draft joint statement. The position has been restated consistently since 2018: lawyers must not get involved in the drafting of the joint statement.

And yet it continues.

What happened in this case?

The claim arose out of damage caused to neighbouring properties when renovation works were carried out on the claimant’s property. Claims brought against five defendants were settled, leaving one outstanding claim against the sixth defendant, AXA Insurance Co. Ltd. Both parties instructed an expert witness: the claimant, represented by Penningtons Manches Cooper (“PMC”), instructed AH; the defendant, represented by Reynolds Porter Chamberlain (“RPC”) instructed HT. The experts then took part in a discussion and produced evolving versions of the joint statement.

Between versions 3 and 4, HT noticed what he felt were significant changes to AH’s views as he had expressed them during discussions. HT brought these to the attention of his instructing solicitors RPC.

RPC wrote to PMC about this matter, with PMC initially denying any wrongdoing on their part until they finally acknowledged, by letter to RPC and subsequently in a statement to the court, that they had not complied with the applicable rules and guidance.

PMC had provided AH with different wording of parts of the joint statement. Their stated intention in doing so was to make sure that the joint statement more closely reflected the issues and wording of the pleaded case.

They accepted that they were wrong to have done so. The judge accepted that this was not a deliberate and knowing disregard of principles; it was, however, a misguided one.

The law is clearly stated at paragraph 13.6.3 of the TCC Guide (which is in the same terms as paragraph 10.48 of the King’s Bench Guide 2024):

“Whilst the parties’ legal advisers may assist in identifying issues which the joint 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 concern should be raised with all experts involved in the joint statement.”

There are therefore three points which emerge from that paragraph:

1. Lawyers must not get involved in negotiating or drafting the joint statement.
2. In exceptional circumstances, they can ask experts to consider amendments. “Exceptional circumstances” means that the court may misunderstand, or be misled by, the wording of the joint statement.
3. In those exceptional circumstances, the concerns should be raised with all the experts involved i.e. a transparent process.

These were not exceptional circumstances and the process was just with PMC’s expert, not with both.

The judge described this as a “substantial and impermissible interference” in the process of drafting the joint statement.

Both parties, and the judge, agreed that the court could no longer be satisfied as to the independence of AH and permission to rely on him was accordingly revoked. The judge did note that there was no evidence before him from AH himself as to the circumstances of what had happened.

The court did, however, grant the claimant permission to instruct a replacement expert.

It remains clear that expert witnesses must fully understand what their instructing solicitors can and cannot ask them to do and that they must be vigilant in ensuring that are fully compliant with their obligations under CPR35.