Blackpool Borough Council v Volkerfitzpatrick and Others [2020] Ewhc 387 (Tcc): Impact on Construction Law

While the evidence to be provided by corrosion experts acting for the Claimant in this matter (Blackpool Borough Council) was not ruled inadmissible, this judgment passed by His Honour Judge Steven Davies in theManchester Technology & Construction Court gives a stern warning to expert sacting under CRP Part 35.

The Claimant was seeking around £6 million in damages from Volkerfitzpatrick 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 structural engineer (Mr. Davis) and corrosion expert (Mr. Clarke) on behalf of theCouncil.

A joint expert (Socotec) was appointed to carry out corrosion testing at the site. During the process of the joint expert carrying out its testing, Mr Davis and Mr. Clarke contacted Socotec and independently instructed them to carry out further testing which was to be secretly carried out without notifying the other corrosion experts meeting periodically to discuss and observe Socotec’s testing.

Judge Davies first explained the widely cited duties of an expert witness in the case of The Ikarian Reefer [1993] 2 Lloyd’s Rep 68 (at pp81-82). These included the duty to provide evidence which is independent and uninfluenced by the exigencies of litigation and to provide evidence which is based on an objective unbiased opinion amongst others.

The Judge also referred to Peet v Mid Kent Healthcare NHS Trust[2002] 1 WLR 210, which sets out the law on the propriety of unilateral contact between 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 [2017] EWHC 1667 TCC and by Fraser J inImperial Chemical Industries Limited v Merritt Merrol Technology Ltd [2018]EWHC 1577 (TCC), where experts had failed to display proper independence.

The ruling in this case distinguished between whether Judge Davies was 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 their expert 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 known to the other experts prior to independently instructing the joint expert, and, if their pleas fell on deaf ears, sought support from their instructing solicitors to apply to the court for an order, if such a suggestion was practical and necessary.

He, however, did not accept that the evidence provided gave any support to the fact that such a request was nefarious and underhanded.

“For completeness, I should say that even considering all of the separate allegations in the round I do not consider that they come any where near justifying the draconian order sought by the defendant and supported by the 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 to instruct and collect evidence how they deem necessary, although the order did not succeed.

The judgment is also support for the notion that the exclusion of expert evidence is a severe sanction which should be reserved for the most extreme of transgressions and only those that hold sufficient evidence to justify 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 dealings with a joint expert and the heavy burden that such experts carry when supporting the Technology and Construction deliberations.