Back in March we highlighted the case of Patricia Andrews & Ors v Kronospan Limited [2022] EWHC 479 (QB) where £225k worth of Expert Evidence was revoked due to the conduct of an Expert Witness. In the case, the Expert had conferred with and sought opinions from the Claimants’ solicitors on issues relevant to ongoing joint expert discussions.
Now another judgment has highlighted a case where an Expert has been found to be actively involving counsel by inviting feedback on their Joint Statement.
In Gary Pickett v David Balkind [2022] EWHC 2226 (TCC), HHJ Paul Matthews (sitting as a Judge of the High Court) gave judgment on applications brought under two application notices.
One of these applications was from the claimant’s solicitor who wanted to prevent use of a letter which had been disclosed relating to their expert structural engineer (Mr Cutting) who would be unable to attend court because he was due to have eye surgery. However, the letter also included four paragraphs relating to the drafting of the Joint Statement. These paragraphs make it clear that the expert had not only actively been seeking feedback from counsel, but they had also involved counsel in the drafting.
The defendant’s solicitor had written to the claimant’s solicitor asking them about this and reminding them of the TCC Guidance:
‘13.6.3 Whilst the parties’ legal advisors may assist in identifying issues which the statement should address, those legal advisors must not be involved in either negotiating or drafting the experts’ joint statement. Legal advisors 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 claimant’s solicitor tried to argue that this was privileged information and that it had been disclosed by mistake. They had then made an application to prevent the letter from being used.
However, on review HHJ Paul Matthews concluded:
“77. ......In my judgment, if there is a deliberate disclosure of information by a party to its opponent, even for an interlocutory purpose, it ceases to be confidential as against that party, and hence loses its privilege.
78. Moreover, I see no justification for separating out, and treating differently, the different parts of the letter in this case. As I pointed out earlier, the first four paragraphs appear to reveal a breach of the expert independence principle. To my mind those paragraphs are less worthy of protection than the remainder, but the remainder is the part which most justifies the reference to the letter in the witness statement of the solicitor. Accordingly, I conclude that privilege has been waived in the whole of the letter of 3 May 2022, and (as I have already said) no injunction should be granted to restrain use of the information contained in it.”
The judgment continues by looking at the defendant’s cross-application for:
- production for inspection of “the written instructions/comments/aide memoire” provided to Mr Cutting
- permission to cross-examine the claimant’s experts at trial
- permission to deploy the letter from Mr Cutting in evidence at trial
The first point is an interesting one and the judgment contains much discussion as to whether these should or should not be disclosed by an expert or whether they should be specifically disclosed in this case.
On this point, HHJ Paul Matthews states that “not every communication between experts and those instructing them is part of their “instructions” for the purposes of rule 35.10(3)”. Therefore, whilst the content of instructions for the report should be included, there is not the same expectation for Joint Statements.
He concluded:
“95. I refuse to order disclosure of the aide memoire, or of any “comments”, “suggestions” and “requests” in relation to the experts’ joint statement or Mr Cutting’s report. On the other hand, but subject to any contrary direction of the trial judge, the defendant may cross-examine Mr Cutting (but not Mr Pryce) in relation to any such aide memoire, “comments”, “suggestions” or “requests”.”
Key to the trial going forward is that HHJ Paul Matthews has given permission for the defence to cross-examine Mr Cutting at trial and use the letter as evidence.
Simon Berney-Edwards, EWI Chief Executive Officer, said:
“It is clear the defence will be seeking to discredit Mr Cutting and will try to show that his independence has been compromised. I predict a rather uncomfortable time in the witness box for Mr Cutting. Sadly it just goes to show the difficult situations you will find yourself if you fail to follow the rules.”
We’ll keep an eye out for the main trial and report back. In the meantime, if you need a reminder of the Rules and Regulations surrounding Expert Meetings and Joint Statements, why not check out our supporting resources or sign up for our webinar on 17th November?