In Dana UK Axle Ltd v Freudenberg FST GmbH, Smith J of the Technology and Construction Court handed down a forceful judgment in which she granted a mid-trial application to exclude the defendant’s technical expert evidence.
This decision, albeit arising from a particular set of circumstances, provides a helpful reminder to parties, lawyers and experts involved in litigation of the importance of compliance with CPR 35, and in particular, of ensuring equality of arms between experts.
Where did it all go wrong?
The underlying litigation between the parties concerned the alleged premature failure of pinion seals manufactured by the defendant (FST) and supplied to the claimant (Dana).
On numerous occasions over the course of the proceedings, Dana’s solicitors had expressed concern about the lack of transparency in respect of information and documentation provided to FST’s experts for the purposes of their reports, as well as FST’s failure to provide copies of such information to Dana and its experts.
These concerns were raised at a Pre-trial review (PTR), during which Dana made the following complaints:
- None of FST’s three expert reports identified the documents on which the expert had relied or included a list of documents provided by FST or its solicitors (contrary to paragraph 55 of the Guidance for the Instruction of Experts in Civil Claims 2014 (2014 Guidance), referenced in Practice Direction (PD) 35, which provides that “Experts should try to ensure that they have access to all relevant information held by the parties and that the same information has been disclosed to each expert in the same discipline”).
- It was apparent that FST’s experts had undertaken site visits to inspect FST’s operations, despite Dana’s experts not being afforded the same opportunity. Further, no details or records from the site visits were provided (contrary to paragraphs 13.3.2 and 13.3.4 of the TCC Guide).
- When referencing data or other information, FST’s expert reports did not always provide reference to the document or data source relied on.
In response to these complaints, an order was granted (PTR order) entitling FST to rely on its expert evidence at trial, provided that it filed and served revised expert reports which addressed the above issues.
Unfortunately, matters only worsened from there.
Following service of revised expert reports by FST, Dana maintained that the reports failed to comply with CPR 35 and the PTR order. Dana’s concerns were exacerbated upon the late receipt of further documents from FST which were said to demonstrate a free flow of information between FST and its experts, without oversight by solicitors, including throughout the period during which the parties’ experts were discussing and drafting joint statements.
While it was suggested in witness evidence filed for FST that these communications merely related to logistical matters and that further correspondence still under review was expected to be benign, Dana was neither convinced nor satisfied with this explanation.
An eleventh hour, mid-trial application to exclude FST’s expert evidence
Against this background, Dana made an application to the court to exclude FST’s expert reports on the basis of (a) breach of the PTR order, including FST’s continued failure to provide Dana with details of all materials provided to its experts; and (b) FST’s failure to comply with CPR 35, PD 35 and the 2014 Guidance.
Dana’s application was brought on day 7 of the trial.
Smith J conclusively found in favour of Dana on each ground of its application, determining that:
- Whilst FST had provided a list of documents on which each of its experts relied, it had never identified a list of all materials provided to the experts. Connected to this was the court’s finding that the experts had been granted “unfettered and unsupervised access to the Defendant’s personnel” and that a significant amount of information had been provided to each expert over a long period of time of which there was no record and that had never been disclosed to Dana or otherwise identified.
- In respect of site visits, the 2014 Guidance had been ignored, commenting that “Truly independent experts paying proper attention to their duties would not have attended site visits without first informing their opposite number … and would not have felt comfortable receiving extensive information from their clients to which their opposite numbers were not privy.”
In barring FST from relying on its expert evidence, the court highlighted the importance of ensuring that experts of like discipline have access to the same material in order to ensure a level playing field.
The court further observed, obiter, that FST’s other breaches of CPR 35, PD 35 and the 2014 Guidance would have been sufficient in themselves to justify refusing permission to rely on the relevant reports.
What can we take from this decision?
This decision offers lessons to experts, lawyers and their clients:
- The principles that govern expert evidence must be complied with by both experts and their legal advisors. When instructing and working with expert witnesses, solicitors should be conscious of CPR 35 and ensure that clients and experts (particularly those from foreign jurisdictions) are aware of these obligations.
- Records, record, records. This case reiterates that both solicitors and experts should maintain detailed records of all information, data and documentation provided to experts. It should be assumed that all documents provided to an expert must be disclosed, rather than just those relied on by the expert for the purposes of their report.
- Direct access versus gatekeeping. Clients should not engage directly with expert witnesses on substantive issues without the involvement of legal representatives, whether in-house or external. Direct contact, without solicitor involvement, might also raise questions as to the client’s influence on the expert’s independence.
Failures to comply with the above, if extreme, can expose clients to severe sanctions (as occurred in this case). More typically, the extent of such failures will be less extreme, but may nonetheless give rise to questions regarding the value of the expert evidence and the credibility of the expert, the legal advisors and their client.