Judge throws out expert evidence during trial in excoriating ruling

Joanna Smith J: Need for transparency ignored

The High Court has excluded three expert witness statements during the trial after ruling that their opinions appeared “directly influenced” by the instructing party.

In a hard-hitting judgment, Mrs Justice Joanna Smith found there had been multiple breaches of a pre-trial review (PTR) order, as well as the rules on expert evidence (CPR 35), its practice direction and the 2014 guidance on instructing experts in civil claims.

She stressed that the “establishment of a level playing field in cases involving experts requires careful oversight and control on the part of the lawyers instructing those experts” – especially where the experts were from other jurisdictions.

“For reasons which have not been explained, there has been no such oversight or control over the experts in this case,” she said.

“The use of experts only works when everyone plays by the same rules. If those rules are flouted, the level playing field abandoned and the need for transparency ignored, as has occurred in this case, then the fair administration of justice is put directly at risk.”

Smith J was ruling in Dana UK AXLE Ltd v Freudenberg FST GmbH [2021] EWHC 1413 (TCC), a claim arising out of the alleged premature failure of pinion seals for vehicle rear axles which were then supplied to Jaguar Land Rover.

The trial commenced on 5 May 2021 but on day seven, Dana applied to exclude FST’s technical expert evidence.

There had been skirmishes around the expert evidence and at the pre-trial review Mrs Justice O’Farrell issued an order permitting FST to rely on its technical experts subject to meeting three conditions.

Smith J found that FST did not comply with any of them. There was, she said, a “serious breach” of the requirement to provide full details of all materials provided to the experts.

A disclosure of documents made during the trial “demonstrates that a significant amount of information was provided to each of the experts instructed by FST over a long period of time that has never been disclosed to Dana or otherwise identified”, she said.

In fact, it was clear that the experts had “unfettered and unsupervised access” to FST personnel and were provided with information by FST during calls and virtual meetings.

“However, there is no record of any of these calls or meetings and no record of the precise nature of the information that was provided.”

City firm Fladgate acts for FST and during the trial partner Alexander Wildschutz provided two witness statements about the evidence, the firm having in pre-trial correspondence confirmed that all the documents which were the basis of the experts’ opinion had been disclosed.

This was an assertion “which now seems to be entirely mistaken”, Smith J observed.

She said it was “difficult to square” Mr Wildshutz’s first statement that the discussions between FST and the experts were limited solely to telephone calls from two of them seeking assistance with locating documents and technical information or logistical assistance, with evidence that “Mr Wildschutz already had available to him at the time of his statement” that showed the discussions were far more detailed.

“Mr Wildschutz explains that he now regrets that he ‘did not ask Mr Bauer [an FST contact] to keep a note of these conversations’,” the judge went on.

“It is most unfortunate, to say the least, that Mr Wildschutz does not appear to have considered it necessary to supervise the interactions that were quite clearly taking place on a regular basis between FST and its experts.”

FST’s failure to comply was “not just a technical or unimportant breach”, she said.

“Where experts are liaising directly with their clients to obtain information which is not recorded (because there is no legal involvement and no vigilance on the part of the expert in keeping detailed contemporaneous notes of such contact and in providing those notes to his or her instructing solicitor), there can be no transparency around the information to which they have been privy and no equality of arms with their opposing experts of like discipline.”

Smith J said the 2014 guidance specifically contemplated that instructions would be provided to experts by solicitors.

“However, it should go without saying that parties cannot get around this requirement for transparency by engaging directly with their experts and by-passing any involvement on the part of their solicitors.”

FST further breached the PTR order by not disclosing site visits its experts made, which the judge condemned as “entirely unacceptable”, while the reports also failed to identify the source and details of the data and other information relied on in support of each proposition/opinion.

“To my mind this is 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 – as seems to have been the case here.”

Smith J said she was “inclined to agree” with the statement of Dana’s solicitor, Nicola Phillips of Crowell & Moring, that the failure to comply with the order was “unlikely to have been inadvertent”, as complying would have revealed the breaches of CPR 35.

“For present purposes it is my judgment that the court cannot condone the actions of FST and its multiple breaches of the PTR order by permitting it to rely on its technical expert reports.”

Though unnecessary, the judge went on to highlight various rule breaches: “There was a free flow exchange of information between the experts and FST’s employees and in-house technical specialists, through extensive email exchanges, numerous telephone and video conferences and at site visits, apparently with no, or very little, oversight from Fladgate.

“Mr Wildschutz explains… that he was contacted ‘numerous times’ by Mr Bauer of FST ‘to seek confirmation as to whether or not he was permitted to provide logistical assistance to the experts’, however it would appear that Mr Wildschutz did not seek to have any involvement in these conversations and nor did he ask that they should be recorded.”

It was also clear that this flow of information continued during the period between the joint expert meetings and the signing of their joint statement, which FST’s counsel, Luke Wygas, did not seek to excuse.

Smith J said the only reason that the TCC Guide did not specify that the parties themselves should not be involved in negotiating or drafting joint statements was because it did not anticipate they ever would be.

A reassurance from Fladgate this would not happen, which Mr Wildshutz provided in an email to Crowell & Moring, “appears to have been inaccurate”.

The judge found that “the experts’ analyses and opinions would appear to have been directly influenced by FST”.

She continued: “I think there is some justification for the suggestion [by Ms Phillips] that FST has interposed itself in the experts’ reports to such a degree that they cannot confidently be said to be the result of the experts’ independent analysis.”

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