Meeting Of Experts – Solicitors Get It Wrong Again!
My loyal readers will know that I often bang on about incompetent experts. There is a treasure trove of articles on the shocking failure of some experts, on my blog. But we should also be alert to the blame which should be attached to solicitors who get it wrong. Most expert witnesses are not full-time experts; indeed, many believe that a witness cannot have current expertise sufficient to give expert evidence if he is not active in his main profession. I have spoken before about the need for those who wish to provide expert evidence to learn how to do it properly. For an accountant, expert witness work is not merely a sexy infill between audits.
But for litigation solicitors, there is no excuse. Their main profession is litigation, and they must know the rules and, of course, ensure that those they instruct as experts follow them, too.
I recently wrote about the case of Patricia Andrews & Ors -v- Kronospan Ltd [2022] EWHC 479 where an expert delivered a joint statement of experts to the court more than two years later. It emerged that he had conferred with his instructing solicitor some 69 times for help in drafting his joint statement. He should have known better. The judge decided that the expert had no regard for their independence. The report was withdrawn and the judge allowed another expert to be appointed. But the first expert had charged £225,000 which was wasted, and there would no doubt be a costs order against that party, too.
But what about the solicitor in all this? The expert should have known better than to turn repeatedly to the solicitor for help, but the solicitor should have known – must have known – that he should not reply when the expert asked. Who paid the £225,000 plus any costs order I don’t know, but from what is reported it surely shouldn’t have been the client.
Now it’s happened again.
Glover -v- Fluid Structural Engineers & Technical Designers Ltd [2024] EWHC 1257 (TCC) was a case about damage to adjoining property, and it required expert engineers to find out what had happened and assist the court to decide whose fault it was. The defendant became suspicious when the claimant’s expert appeared to have changed his opinions as the joint statement was being compiled. A series of questions were posed of the claimant’s solicitor, who gave assurances that nothing untoward had happened.
Then, when the claimant’s solicitor was asked whether any instructions had been given regarding the substance and the wording of the draft statement and whether the expert had been asked to change his opinion, there was no reply. This was highly suspicious.
The TCC Guide is quite specific about what help a solicitor may give to their expert in joint reports. Here is the relevant wording from paragraph 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.”
This could not be plainer. The lawyer must not be involved in drafting or negotiating the experts’ joint statement. Only in exceptional circumstances where the court may misunderstand or be misled by the statement should they intervene, and even then, they must communicate with all the experts. Cosy chats between one lawyer and their expert are verboten!
So what happened? The claimant’s lawyer apologised to the defendant and the court, accepted that permission to rely on their expert’s opinion be revoked, and asked permission for a new expert to be appointed. The judge allowed for a new expert, but only if the original trial date could be met.
But here’s the rub. The judge awarded costs thrown away on an indemnity basis and 30% of the costs of considering the new expert’s report and the joint report, again on an indemnity basis if not agreed. That would hurt.
There really cannot be any excuse if litigation lawyers don’t know the rules, or don’t follow them. The expert should never have asked for assistance in drafting the joint statement but, a fortiori, the lawyer should not have given that assistance. And, in line with my repeated entreaties, the lawyer should have chosen an expert who knew the rules and followed them.
Age-old moral: choose your experts with care.
