Expert who sent first draft of evidence to solicitors “not a hired gun”

Asbestos: Negligence claim

It was “a serious transgression” for an expert witness to make changes to his evidence after sending a first draft to his client’s solicitors, the High Court has ruled.

However, His Honour Judge Stephen Davies, sitting as a High Court judge, rejected the other side’s contention that the expert had come across as a “hired gun”.

BDW Trading Ltd v Integral Geotechnique (Wales) Ltd [2018] EWHC 1915 (TCC) was an ultimately unsuccessful professional negligence claim brought by the claimant national housebuilder against the defendant firm of consulting engineers over its advice of the risk that materials containing asbestos might be present on a site it was considering buying.

One of the four experts was Dr David Tonks, a consulting engineer with a specialism in geotechnical engineering and with considerable experience in acting as an expert witness.

HHJ Davies said: “An issue arose in his evidence when he was asked about the preparation of the joint statement of the experts. He accepted that he had sent the first draft of the joint statement to IGL’s solicitors for their comments and, having received feedback, made some changes to that draft as a result.”

The claimant’s counsel “rightly complained” that it was inappropriate for independent experts to seek input from their client’s solicitors into the substantive content of their joint statement or, for that matter, for the solicitors either to ask an expert to do so or to provide input if asked, save in the limited circumstances referred to in paragraph 13.6.3 of the TCC Guide.

This states: “Whilst the parties’ legal advisers may assist in identifying issues which the statement should address, those legal advisers must not be involved in either negotiating or drafting the experts’ joint statement.

“Legal advisers should only invite the experts to consider amending any draft joint statement in exceptional circumstances where there are serious concerns that the court may misunderstand or be misled by the terms of that joint statement.

“Any such concerns should be raised with all experts involved in the joint statement.”

The judge said this was consistent with the practice direction to part 35.

He continued: “What happened here was, I agree, a serious transgression and it is important that all experts and all legal advisers should understand what is and what is not permissible as regards the preparation of joint statements.

“To be clear, it appears to me that the TCC Guide envisages that an expert may if necessary provide a copy of the draft joint statement to the solicitors, otherwise it would not be possible for them to intervene in the exceptional circumstances identified.

“However, the expert should not ask the solicitors for their general comments or suggestions on the content of the draft joint statement and the solicitors should not make any comments or suggestions save to both experts in the very limited circumstances identified in the TCC Guide.

“That is consistent with the fact that any agreement between experts does not bind the parties unless they expressly agree to be so bound (see part 35.12(5)).”

HHJ Davies acknowledged that there may be exceptional cases where a party or its lawyers were concerned that the experts’ views as stated in the joint statement may have been “infected by some material misunderstanding of law or fact”.

If so, there was “no reason” why that should not be drawn to the attention of the experts so that they may have the opportunity to consider the point before trial.

“That however will be done in the open so that everyone, including the trial judge if the case proceeds to trial, can see what has happened and, if appropriate, firmly discourage any attempt by a party dissatisfied with the content of the joint statement to seek to re-open the discussion by this means.”

However, the judge said it was “plain”, having heard him give evidence, “that Dr Tonks was genuinely unaware that his conduct in this respect was inappropriate.

“Furthermore, I am quite satisfied that there is no basis for considering that he had modified in any significant way the substance of his opinion as discussed with [the other expert] as a result of his contact with and feedback from IGL’s solicitors.”

Overall Dr Tonks’ evidence was in the main “balanced and realistic and I tend to accept his views”, HHJ Davies said, rejecting the claimant counsel’s submission that the expert came across as a “hired gun” prepared to argue the case and to change his opinion based on what IGL or its solicitors said.

At the same time, counsel disclaimed any suggestion that Dr Tonks was not an independent expert witness.

HHJ Davies said: “I am quite satisfied that he did not cross the line into inappropriate advocacy or partisan evidence.”

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