WHEN EXPERT WITNESS EVIDENCE IS EXCLUDED
In Dana UK AXLE Ltd v Freudenberg FST GmbH [2021] EWHC 1413 (TCC) (“Dana”), an application to exclude expert witness evidence in the middle of a trial was made successfully.
In the Dana decision, the Claimant applied to the Court in the middle of the hearing to exclude the Defendant’s technical expert evidence on the ground that:
The Defendant failed to satisfy the conditions imposed by a Pre Trial Review Order (the “PTR Order”), where the court had allowed the Defendant to rely on three technical expert reports at trial provided the conditions inside the order are met; and
The Defendant failed to comply with Civil Procedure Rules (“CPR”) Part 35, the Practice Direction to CPR 35 and Guidance for the Instruction of Experts in Civil Claims 2014 (the “2014 Guidance”) in respect of the instruction of its Experts and its interaction with those Expert.
For the purposes of this blog, it suffices to state that the Claimant’s application was successful. It is useful, however, despite the differences in civil procedure rules, to see why the Court in Dana granted the claimant’s application. We set out some salient portions below to illustrate the (rather exceptional) facts of Dana.
Failure to provide full details of all materials provided to experts. The Court found that there was a “serious breach” of the PTR Order which obliged the defendant to provide “full details of all materials provided to the experts by [the Defendant’s] solicitors and/or by [the Defendant].”
This is because, among others:
The Defendant never identified “… whether in the form of a list or otherwise, all of the materials provided to the Experts”; and
The Court found that “… a significant amount of information was provided to each of the Experts instructed by [the Defendant] over a long period of time that has never been disclosed to [the Claimant] or otherwise identified. Indeed it is clear from the May Disclosure, as [the Claimant] has long suspected and the Phillips Statement records, that "the Experts had unfettered and unsupervised access to the Defendant's personnel" and that they were provided with information by [the Defendant] 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.” (emphasis in original)
The Court held that the breach was not merely technical or unimportant, for:
“35 … It is essential for the Court to understand what information and instructions have been provided to each side's experts, not least so that it can be clear as to whether the experts are operating on the basis of the same information and thus on a level playing field. Experts should be focussed on the need to ensure that information received by them has also been made available to their opposite numbers. As Fraser J said in Imperial Chemical Industries Ltd v Merit Merrell Technology Limited [2018] EWHC 1577 (TCC) at [237(1)]: "Experts of like discipline should have access to the same material. No party should provide its own independent expert with material which is not made available to his or her opposite number".”
Unilateral site visits. In addition, the PTR Order had required the “disclosure of all documents (including photographs) produced by or provided to each expert during any site visit, including any notes taken by the expert of information provided to the expert/seen by the expert during any such visit (including notes of statements from operators or other staff etc.)”.
But in breach of the PTR Order, the Defendant’s experts “… not only engaged in site visits about which they did not inform [the Claimant]'s experts at the time and in respect of which they have apparently kept no records, but also that there were, in fact, more site visits than had previously been disclosed in their reports”.
In particular, the Court found that “[s]ave for a few photographs, no disclosure has been provided in respect of the visits”, and that the Defendant’s failure to disclose “the existence of various site vists until the trial is evidence of a breach of this requirement”
Failure to identify the source and details of data and other information relied upon. Further, the Court also found that the Defendant’s experts had failed to comply with the requirement of the PTR Order to “to identify the source and details of the data and other information relied on in support of each proposition/opinion.”
To give a flavour of the difficulties that the Court encountered, at [57] Dana, the Court posed the following questions, which the Court stated at [58] Dana as being “troubling questions”:
“57. There remain, however, a number of unanswered questions – where did Mr Jackowski obtain the very detailed information that he provided in paragraph 83 of his report and why did no one at FST identify his mistake when they read his draft report? Why was he even referring to this information if he did not think that it concerned the cap on cavities 1 and 2 used for the manufacture of the Seal? Why did Mr Jackowski continue to include that information in his report when it would appear from the terms of his email dated 1 December 2020 that he was himself concerned as to the accuracy of the information that he had been given? Why did it take so long for the non-existence of a 2013 FEA to come to light, notwithstanding that Dana's solicitors had been asking questions about it from the date of receipt of Mr Jackowski's report? Why did Mr Jackowski not take the opportunity to correct the impression given in paragraph 83 of his report when he responded to the CPR Part 35 Questions, which he ought to have appreciated would be treated as part of his report and thus subject to a statement of truth? Why does the evidence now provided by Mr Wildschutz and Mr Jackowski (in his CPR Part 35 Responses) say that the 2020 FEA was commissioned by Mr Jackowski in order to respond to matters raised by Dana when the work order for that 2020 FEA (disclosed in the April Disclosure) appears to be dated 1 April 2020?”
Significance. Dana is an exceptional case where the Defendant’s experts had clearly been in breach of their obligations. The result is that the Court stated at [84] Dana that “[t]he conduct of all three Experts has (at the very least) called into question the independence of their reports and the extent to which they have provided objective and unbiased opinions in those reports. Indeed I think there is some justification for the suggestion in the Phillips Statement at paragraph 60 that [the Defendant] 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.”
Nonetheless, Dana is an important reminder to parties and to their counsel that experts should never be viewed as hired guns: their overriding obligation is to the court, and they should be independent and impartial.
As such, conduct by an expert such as seeking comments from the expert’s client’s in-house specialist on the expert’s report and asking the client if the expert’s draft report is “the type of report that you were looking for” would at the minimum cast very serious doubt over the expert’s independence and impartiality, if not being in and of itself a ground for the other party to successfully apply to exclude the expert’s report altogether.
This publication is not intended to be, nor should it be taken as, legal advice; it is not a substitute for specific legal advice for specific circumstances. You should not take, nor refrain from taking, actions based on this publication. Chancery Law Corporation is not responsible for, and does not accept any responsibility for, any loss or damage that may arise from any reliance based on this publication.