While the evidence to be provided by corrosion experts acting forthe Claimant in this matter (Blackpool Borough Council) was not ruledinadmissible, this judgment passed by His Honour Judge Steven Davies in theManchester Technology & Construction Court gives a stern warning to expertsacting under CRP Part 35.
The Claimant was seeking around £6 million in damages fromVolkerfitzpatrick Limited and their co-defendants, arising out of a breach ofcontract in relation to the design and construction of a new tram depot inBlackpool. The case involved expert evidence to be provided by a structuralengineer (Mr. Davis) and corrosion expert (Mr. Clarke) on behalf of theCouncil.
A joint expert (Socotec) was appointed to carry out corrosiontesting at the site. During the process of the joint expert carrying out itstesting, Mr Davis and Mr. Clarke contacted Socotec and independently instructedthem to carry out further testing which was to be secretly carried out withoutnotifying the other corrosion experts meeting periodically to discuss andobserve Socotec’s testing.
Judge Davies first explained the widely cited duties of an expertwitness in the case of The Ikarian Reefer  2 Lloyd’s Rep 68 (at pp81-82). These included the duty to provide evidence which is independent anduninfluenced by the exigencies of litigation and to provide evidence which isbased on an objective unbiased opinion amongst others.
The Judge also referred to Peet v Mid Kent Healthcare NHS Trust 1 WLR 210, which sets out the law on the propriety of unilateral contactbetween one party and a single joint expert.
In doing so, Judge Davies also reiterated the warning by Coulson Jin Bank of Ireland v Watts Group plc  EWHC 1667 TCC and by Fraser J inImperial Chemical Industries Limited v Merritt Merrol Technology Ltd EWHC 1577 (TCC), where experts had failed to display proper independence.
The ruling in this case distinguished between whether Judge Davieswas being asked to give a view on whether the activities of Mr. Clarke and Mr.Davis fell short of best practice and whether their conduct rendered theirexpert evidence inadmissible.
Judge Davies made it clear that it would have been preferable forMr. Clarke and Mr. Davis to have made their views on alternative testing knownto the other experts prior to independently instructing the joint expert, and,if their pleas fell on deaf ears, sought support from their instructingsolicitors to apply to the court for an order, if such a suggestion waspractical and necessary.
He, however, did not accept that the evidence provided gave anysupport to the fact that such a request was nefarious and underhanded.
“For completeness, I should say that even considering all of theseparate allegations in the round I do not consider that they come anywherenear justifying the draconian order sought by the defendant and supported bythe other parties.”
This judgment, together with the Coulson and Fraser judgments,should be a stern warning for experts to not assume they have free rein toinstruct and collect evidence how they deem necessary, although the order didnot succeed.
The judgment is also support for the notion that the exclusion ofexpert evidence is a severe sanction which should be reserved for the mostextreme of transgressions and only those that hold sufficient evidence tojustify the exclusion of the expert’s evidence.
A skilled judgment was delivered by Judge Davies in this case,providing support for the importance of transparency with regard to dealingswith a joint expert and the heavy burden that such experts carry whensupporting the Technology and Construction deliberations.
About the Author
John Stocker is a specialist construction, engineering and majorprojects lawyer with 18 years of experience advising in the ﬁeld and who speaksregularly at conferences and seminars and has published several articles. Johnis admitted to practice in England and Wales (2003) and in the High Court ofSouth Africa (2002).
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