When the Experts’ Meeting goes wrong

By CHRIS MAKIN chartered accountant, accredited civil mediator and accredited expert determiner

“It is ordered that the experts of like experience shall liaise, and shall produce a joint statement, setting out those matters on which they are agreed, and those matters on which they have failed to reach agreement, and their reasons for not so agreeing.”

[THIS IS FAIRLY STANDARD WORDING in civil cases. In criminal cases the experts are also ordered to set out the reasons for which they have reached agreement, which is interesting; but let’s stay with civil cases.

So the experts have to get together and produce a joint statement, and that will form part of their report, so that the Expert’s Declaration and the Statement of Truth must be included or at least confirmed as still applying.

How important is this joint statement? Very; I prepare for a joint discussion as carefully as for a High Court hearing. Who produces it? The experts, of course. What part do instructing solicitors play in this? Virtually none. I say virtually none, because they may participate in preparing an agenda of matters to be discussed, though in practice after hundreds of such meetings I have never been asked by my instructing solicitor to include anything. And that makes sense; the experts have produced their reports, they have reached and expressed their opinions in their separate reports, the differences are obvious, and they become the agenda.

But what happens if one of the experts asks their instructing solicitor for help or comment on what is being discussed, or if the solicitor takes it upon themself to interfere? The answer is that the offending expert or solicitor will put the progress of their case at risk, and will waste a great deal in expert’s fees.

This was the situation in the recent case of Patricia Andrews & Ors v Kronospan Limited [2022] EWHC 479 (QB). It was a group action by 159 residents living close to the defendant’s wood processing plant. It was alleged that the defendants were liable to the residents in nuisance through dust, noise and emissions.

There was an expert on both sides, and they were ordered to produce their reports in April 2021 with a joint discussion to follow. But their joint statement didn’t follow, and after several months the defendant’s solicitors discovered that the claimants’ expert had been conferring frequently with his instructing solicitor.

It started when the expert, unsolicited, sent a draft of the joint

About Chris Makin

[CHRIS MAKIN was one of the first 30 or so chartered accountants to become an Accredited Forensic Accountant and Expert Witness – see www.icaew.com/about-icaew/find-a-chartered-accountant/find-anaccredited-forensic-expert.

He is also an accredited civil and commercial mediator and an accredited expert determiner. Over the last 30 years he has given expert evidence at least 100 times and worked on a vast range of cases.

For CV, war stories and much more go to the website at www.chrismakin.co.uk – now with videos! q

report to his solicitor, and over many months there had been frequent email and telephone exchanges. Many were of simple procedural matters, but the solicitors had made 68 comments on the various drafts, and the Master found that ‘…many others commented or made suggestions on issues of substance’.

This was when the matter came before Senior Master Fontaine, when the defendant applied for the claimants’ expert to be refused permission to appear at court; and this was after an appointment which had gone on for three years, and for which the expert had charged £225,000 – note to self: very much higher than any expert fee I have ever charged over the last 30 years!

The claimant solicitors were suitably shamefaced. They accepted that ‘it was wrong for an expert to solicit input from their instructing solicitors during the process of drawing up a joint statement, just as it is wrong for solicitors to provide that input’. And the Master said that the expert’s approach ‘strongly suggested that he regards himself as an advocate for the claimants, rather than an independent expert whose primary obligation is to the court’.

The Master said that the court could have no confidence that this expert would act in accordance with his obligations as an expert to the court. And further, ‘the basis upon which the claimants received permission to rely on Mr X as an expert witness, namely his duties under CPR 35.3 and PD 35 at paragraphs 2.1 and 2.2, has been undermined’. And then ‘it is important that the integrity of the expert discussion process is preserved so that the court, and the public, can have confidence that the court’s decisions are made on the basis of objective evidence’.

The words of the above two paragraphs in the Practice Direction are so fundamental that it is worth setting them out here: 2.1 Expert evidence should be the 2.1 independent product of the 2.1 expert uninfluenced by the 2.1 pressures of litigation. 2.2 Experts should assist the court 2.2 by providing objective, unbiased 2.2 opinions on matters within their 2.2 expertise, and should not 2.2 assume the role of an advocate.

These words are not new. Cresswell J used similar words in the seminal case of The Ikarian Reefer [1993] Lloyd’s Rep 68, and these virtually identical words were spoken by Lord Wilberforce in the House of Lords case of Whitehouse v Jordan in 1980: “The report of the expert must be, and must be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.”

The duty to act correctly falls on the solicitor as much as on the expert. See this, from Imperial Chemical Industries Ltd v Merrit Merrall Technology Ltd [2018] EWHC 1577 at (237): “The principles that govern expert evidence must be carefully adhered to, both by the experts themselves, and the legal advisers who instruct them. If experts are unaware of these principles, they must have them explained to them by their instructing solicitors. This applies regardless of the amounts in stake and in any particular case, and is a foundation stone of expert evidence.”

A foundation stone – serious stuff.

What happened in the Patricia Andrews case was that there was a serious danger that the claimants would be left without expert evidence, which could have been catastrophic. But because a hearing date had not yet been fixed, the Master allowed them to instruct new experts. But what a waste of £225,000!

I have said this before, but it is worth repeating. An expert must be accomplished in their own profession, but also in the ‘second profession’ of expert witness. This Mr X acting as expert for the claimants should have known better than to confer with his instructing solicitor and, of course, the solicitor should have known better than to indulge him. This was an expensive mistake, and it could have been a tragedy.

Choose your experts with care! Choose experts who know what they are doing! q