Our Consultant Solicitor Kenneth Salmon provides an update and commentary on a recent case of note.
Supervision and Control of Experts Kenneth T. Salmon Consultant Solicitor at Slater Heelis CaseUpdate
Construction&Engineering
Dana UK Axle Ltd v Freudenberg FST GmbH
. . .to the dispute and produced further documents a few weeks before trial, which had been relied upon by its own experts but not seen by Dana and its experts.” This and other concerns, led the judge to order FST’s solicitors to produce a witness statement identifying all documents and information to which its experts had had access in preparing their reports. The result was that FST’s solicitors produced a further 2500 documents. It also came to light that FST's technical experts had liaised with individuals at FST without any solicitor involvement and without creating notes of their conversations.
The case of Dana UK Axle Ltd v Freudenberg FST GmbH[1] contains a salutary lesson for experts who fail to comply with their duties under Part 35 CPR and lawyers who fail to ensure their experts understand their duties or to exercise adequate supervision over the performance of those duties.
Overview
Dana provided front and rear drive axles to Jaguar Land Rover (JLR).
Between 2013 and 2016, JLR alleged that pinion seals in the axles failed, claiming £11m from Dana.
As a result of the new disclosure, evidencing what Dana’s counsel described as
“an uncontrolled and unsupervised free flow of information between FST and its experts, including during the critical period between expert meetings and the signing off of their joint statement”, Dana successfully applied to exclude all of FST's technical expert evidence and any reliance upon it at the trial. More surprising was the revelation in closing submissions that, according to FST’s solicitors, no member of FST’s staff nor any of the experts were informed that the manner in which the communications between them were being conducted would not be compliant with the Civil Procedure Rules Part 35 and accompanying Practice Direction or the Technology and Construction Court Guide. In this regard, the judge noted that none of FST's technical expert reports appeared to comply with the Practice Direction to CPR Part 35.
The seals were made and supplied to Dana by FST, a German Company.
Dana claimed damages for breach of contract by FST and the claim was heard by Joanna Smith J.
The Trial
The judgment is interesting on a number of counts, but here we are concerned only with the obtaining of admissible expert evidence. In advance of and at the start of the trial, Dana expressed concerns as to the lack of disclosure provided by FST. Amongst other things, it said FST “did not make it clear from the outset that it would have relevant documents stored in its Hungarian plant, did not disclose all relevant documents prompting numerous requests from Dana which resulted in additional disclosure, produced a large number of documents in supplemental disclosure which were central . . .
[1] [2021] EWHC 1751 (TCC)
So what can lawyers and experts learn from this case?
They all failed (i) to contain a statement that the expert understood his or her duty to the Court and had complied with that duty; (ii) to state that the expert was aware of the requirements of CPR Part 35, the Practice Direction and the Guidance for the Instruction of Experts in Civil Claims 2014; and (iii) to provide a statement of truth in the terms required by paragraph 3.3 of the Practice Direction. The learned Judge was “extremely surprised, to say the least”, that not only had the solicitors failed to maintain appropriate levels of supervision and control over FST's experts, but it also appeared: “not to have explained their duties to them or to have ensured basic levels of compliance with the requirements of the CPR.” As basic as these failures were, there are important lessons here for all legal advisers and experts alike. It is necessary but not sufficient merely to remind experts by their instructions of their duties to the court as set out in CPR Part 35 and the Practice Direction thereunder and also, the relevant Court Guide. It is also essential for solicitors (not their clients) to supervise and control as necessary the conduct of the experts’ investigations, and in particular to act as a ‘gate keeper’ in regard to the flow of information and documents to the experts, and to be fully aware of and control what is being considered.
First, it should not be assumed that experts (whether based in the UK or other jurisdictions) necessarily know of or fully understand their duty to the court under our legal system. Therefore as a minimum they should be provided with a copy of CPR Part 35 and the relevant Practice Direction(s) and Court Guides and the basic principles of independence and their duty to the court impressed upon them in the letter of instruction and at the first meeting. Clients should also be made aware of these duties and the rules and guidance. The Ikarian Reefer[2] remains a good starting point for an understanding of the expert’s duties. Second, lawyers should ensure that both experts and client understand that whatever is supplied to and considered by the expert, must be referred to in the expert’s report and must be or be made available to the other parties and their experts and the court. All information and documents to be considered by the experts should be supplied to them by instructing solicitors rather than the client so that the solicitors can exercise their supervisory role. Third, any meetings or discussions between the client / witnesses and the experts and any tests that are conducted should be properly attended by instructing solicitors whose duty it is to regulate the flow of information, to ensure that what is to be taken into account is admissible. Consideration should be given as to whether the other party’s experts should be invited to witness tests. All meetings, attendances and tests should be minuted by the legal representative present.
[2] [1999] 2 All ER (Comm) 673
Fourth, experts meetings should be conducted in accordance with the Practice Directions and protocols and the experts should be looking at all the same information. Experts should record the discussions, and must provide and sign a joint statement recording what is agreed and what is not agreed. The scope of the experts’ authority to reach agreement on matters within their discipline and remit, should not be circumscribed or limited by those instructing them so as to compromise their independence and or duty to the court. It is apparent from this and other recent decisions that the application of CPR Part 35 and the Practice Directions is not universally understood or diligently followed and that there are practical difficulties in applying the various rules. It may be time to review the whole question of the way in which experts are retained and supervised but until then, solicitors and experts should assure, rather assume, compliance.
Kenneth Salmon Consultant Solicitor
21 July 2021
[2] [1999] 2 All ER (Comm) 673
Construction&Engineering Get in touchwith our team formore information:
MatthewGrellier Partner &Head of Construction matthew.grellier@slaterheelis.co.uk 0161 672 1427 | 07753 464 740
Kenneth Salmon Consultant Solicitor kenneth.salmon@slaterheelis.co.uk 0161 672 1436 | 07786 702 140
@SlaterHeelisLaw /slaterheelis
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