Expert Evidence 101: How not to do it

A recent decision from Joanna Smith J sitting in the Technology and Construction Court is a mortifying lesson in how not to work with experts in English litigation. It is worth a read if you are a litigator or a litigant and you need to instruct an expert - or more generally if schadenfreude is your thing. The judgment (Dana UK AXLE Ltd v Freudenberg FST GmbH [2021] EWHC 1413 (TCC)) is available here.

Speedread

The judgment serves as a solemn reminder that the Court will not tolerate improper conduct when managing experts. On the facts, Joanna Smith J had little difficulty excluding FST's expert evidence entirely at trial. The key things to remember are:

1. Contact between clients and experts needs to be tightly supervised by solicitors. FST's solicitors were heavily criticised for not adequately supervising those interactions.
2. Particular care needs to be taken with foreign experts who may not be familiar with the rules for expert evidence in England and Wales.
3. Expert reports need to set out clearly the substance of all material instructions given to them. This is obvious and appears directly in CPR Part 35, but there needs to be sufficient transparency between the parties so that there is a level playing field when it comes to expert evidence.

Given the recent changes to witness evidence in the Business and Property Courts (my summary available here), I wonder whether there may be judicial appetite to require solicitors to certify that expert reports comply with the rules in an attempt to avoid this sort of situation in the future...

Background

The claimant (Dana) issued proceedings against the defendant (FST) after pinion seals manufactured by FST and supplied to Dana had allegedly failed. (I am not a car expert but my understanding is that pinion seals stop fluid leaking from car axles...) Dana had fitted the seals to vehicle rear axles which it had then supplied to Jaguar Land Rover for installation into its cars.

The case went to trial in early May 2021. On day seven of the trial, Dana applied to exclude FST's technical expert evidence.

The background to that decision is pretty extreme but, in summary, is as follows:

1. Expert evidence was due to be exchanged in February 2021. FST filed its evidence eight days late.
2. Dana said that it would not object to late service as long as a series of alleged defects with FST's expert evidence were corrected. Those defects were, in summary, that the reports did not identify the materials and documents provided to the experts, they did not provide adequate particulars of site visits undertaken by FST's experts (photographs, notes taken during visits etc...) and they did not identify the sources of data underpinning the experts' conclusions.
3. At the Pre-Trial Review, O'Farrel J granted relief from sanctions for the late service provided that FST served amended expert reports which corrected those alleged defects.
4. FST served amended expert reports but Dana was of the view that they did not comply with the order of O'Farrel J.
5. Dana served formal CPR Part 35 questions on FST's experts which were designed to elicit the information Dana had expected the amended expert reports to set out. FST responded but Dana remained of the view that they were insufficient.
6. Dana maintained its position on the non-compliance during opening submissions at trial. Joanna Smith J ordered FST's solicitors, Fladgate, to serve a witness statement explaining the contact FST’s experts had had with FST staff, the site inspections and documents provided to the experts. This resulted in further disclosure from FST of some 175 documents.
7. Dana’s applied to exclude FST’s technical expert evidence on the basis that it did not comply with the PTR order, CPR Part 35 and its Practice Direction, and the CJC’s guidance for experts.

The decision

Joanna Smith J found that FST had breached the PTR Order. In particular:

1. She was satisfied that FST's experts had had unfettered and unsupervised access to FST personnel and that a considerable amount of material had been provided to FST's experts over a long period of time that had not been disclosed to Dana or otherwise identified. She noted the "contact between FST and its Experts in this case is clearly so extensive and so lacking in control that I cannot possibly determine that it involved nothing more than the provision of immaterial information". She went on heavily to criticise the supervising partner acting for FST for failing properly to supervise the interactions between FST and the experts.
2. She found that it was "entirely unacceptable" that proper details of FST's experts' site visits only came to light during trial.
3. As for the failure to identify sources of data, the case was “… a paradigm example of what can go wrong if an expert is left to obtain information direct from his clients without legal involvement and, indeed, if that expert does not even require sight of the detailed information on which he then relies for the purposes of preparing his report…” . 

Joanna Smith J also found that FST's conduct did not comply with CPR Part 35, the Practice Direction to CPR 35 and the CJC’s guidance for experts. The technicalities of the individual breaches are outlined more fully in the judgment but, in particular, she noted:

• "...there was a free flow exchange of information between the Experts and FST's employees and in-house technical specialists... apparently with no, or very little, oversight from Fladgate".
• That free-flow exchange continued during the period between joint expert meetings and the signing of the experts' joint statement. The TCC Guide makes clear that legal advisers should not be involved in negotiating or drafting joint statement but Joanna Smith J thought that this should also apply to the parties themselves.
• The experts' opinions appear to have been directly influenced by FST.