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)
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