Summary
The claimants were seeking permission to change their expert after their solicitors admitted they had not understood, and did not comply with, applicable rules and guidance on experts' joint statements.
Learning points
Learning points for instructing parties:
-
Ensure that you understand and comply with the applicable rules and guidance governing experts’ joint statements.
-
Disclose any inadvertent non-compliance as soon as you are aware of it and apologise for it to the other party.
-
Permission to replace an expert is unlikely to be granted if it would vacate the trial date.
Learning points for experts:
-
Ensure that you understand and comply with the applicable rules and guidance governing expert joint statements.
-
Remember that the joint statement sets out the experts' views on the issues and does not bind the parties unless they agree to its doing so.
-
Do not let inappropriate interference by the legal team go unchallenged.
-
Seek advice from, for example, the EWI member helpline if you are unsure whether the actions of the legal team in respect of a joint statement are non-compliant.
The Case
The claimants were seeking a declaration that they were entitled to an indemnity from AXA XL under an insurance policy issued in their favour for damage done to adjoining properties during the renovation of the their property. The court gave permission to the parties to call expert witnesses in respect of structural engineering and quantum. The claimants engaged Mr Hardy as their structural engineering expert, and the defendants Mr Tucker. The evidence was timetabled for an Experts’ Joint Statement followed by experts’ reports.
The concern that lawyers interfered with the Joint Statement
The experts agreed and signed the Joint Statement. However, Mr Tucker raised with the defendant’s solicitors his concerns that the claimants' lawyers may have been involved in changes made between versions 3 and 4 because of the nature of the amendments and the language used. The defendant’s solicitor raised these concerns with the claimants’ solicitors and sought reassurance that they had complied with paragraph 13.6.3 of the TCC Guide which states that:
“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 claimants’ solicitors denied the validity of the concerns and argued that paragraph 13.6.3 expressly permits legal advisors to identify the issues that the Joint Statement should address and where necessary, to invite the experts to consider amending the draft Joint Statement where there are serious concerns that the court may misunderstand or be misled by the terms of that Joint Statement.
The defendant’s solicitors were unable to obtain the reassurance they sought in the subsequent correspondence, and AXA XL issued an application seeking the revocation of the claimants’ permission to rely on the evidence of Mr Hardy.
Extensive revisions and deletions by legal advisors
Shortly after the application for revocation, the claimants’ solicitors admitted that their conduct of the joint statement process was not fully compliant with the applicable rules and guidance. Mr Stockill noted that:
“I accept that my firm did not comply with the applicable rules and guidance. In particular, I accept that we made comments on and proposed amendments to draft 3 of the Joint Statement that we were not permitted to make. In addition, I confirm that (albeit to a lesser extent) my firm also provided comments on and proposed amendments to drafts 2, 6 and 7 of the Joint Statement that we were not permitted to make. This non-compliance arose through a failure to understand the applicable rules and guidance and I apologise unreservedly to the Court and AXA XL for this.”
Privilege was waived in relation to communications between the claimants' solicitors and Mr Hardy exhibited in this statement, which included the drafts of the Joint Statement.
There had been extensive revisions and deletions made to the third draft by the solicitors. For example, the judge noted that:
Issue 1.2 “Expectation of damage” was revised to read “Inevitability of damage”. The previous wording against that issue:
“It is not possible to construct a new basement extension to a Victorian terrace without cracking in the neighbouring properties. Pre existing cracking and distortion in the neighbouring properties is to be expected. Cracking arising from the basement construction should be limited to within tolerable limits”
“The policy does not provide for damage “which can reasonably be foreseen to be inevitable having regard to the nature of the work to be executed or the manner of its execution” which is an exclusion under the XL Policy
And Mr Hardy’s Comment “Agreed” against the original issue was deleted with “noted for reference” added against the revised issue.
The explanation provided in the “Commented” box was:
“Not an expert issue relevant to the pleading”
And that:
Issue 4.1 “Cause of damage” was revised to add the underlined words:
New cracks and the widening of existing cracks in the front elevations of the properties during the Policy Period was caused by (partial) collapse and/or subsidence and/or weaking (sic) or removal of support arising out of or in the course of or by reason of the carrying out of the Works to construct the basement to No 124.
Changing experts
The judge noted that the facts disclosed substantial and impermissible interference in the expert statement process by the claimants’ solicitors which was clearly contrary to both authority and the applicable guidance issued by the TCC.
In considering the question of a replacement expert, the judge had regard to the overriding objective of enabling the court to deal with cases justly and at proportionate cost. He noted that, if the consequence of a replacement structural engineering expert had been to lose the trial date then, for that reason alone, he would not have granted permission.
The judge granted permission for the claimants to rely on an alternative expert because:
-
Structural engineering evidence was central to the issues in the proceedings,
-
The expert evidence can be timetabled to preserve the trial date and not cause unfairness to AXA XL,
-
The limited evidence before the court does not suggest that the claimants’ solicitors attempted to change Mr Hardy’s opinion on the central issues in dispute,
-
The conduct was not of the claimants but their solicitors, and
-
There had been a frank admission and apology.
The judge concluded that no further disclosure was required as a condition for replacing the expert. On costs, the judge determined that the claimants should pay the costs thrown away as a consequence of the need for the replacement expert as well as 30% of AXA XL’s costs in consider the joint statement and expert report of the claimants’ replacement expert.