oct ewj 24 online - Flipbook - Page 60
Expert Evidence - Practical Points
from Recent Cases
by: Nikolas Ireland, Christopher Charlton and Madeleine Brown - www.macfarlanes.com
The Macfarlanes litigation team works on a full
spectrum of disputes work, including competition,
commercial, construction, corporate, fraud, financial
services, private wealth and tax disputes. All of our
practitioners are accustomed to working extensively
with expert advisers and expert witnesses. With that
in mind, we have drawn together some key points
arising from recent experience and case law on how
lawyers and experts can work together most effectively to give the courts the best possible expert
evidence.
been in full compliance with the applicable rules and
guidance.
In considering the claimants’ subsequent request for
permission for a replacement expert, the judge appreciated that the solicitors had not intended to alter
the views of the expert, but agreed that the Court
could not be satisfied as to his independence based on
what had occurred. As a result, it was indeed necessary
to go to the time and expense of replacing the expert.
Fortunately for the claimants, the court was willing to
give permission for this in the circumstances.
Solicitor’s input - interference or support?
Earlier this year, the High Court discussed the
seriousness of interference with expert evidence. A
firm of instructing solicitors offered its unreserved
apology to the Court and to the other party for making impermissible comments and proposed amendments to a joint statement of experts.
On the other hand, at least some degree of assistance
from the legal team when preparing a lengthy and
detailed expert report is expected by the Court, and
challenges to experts’ substantial evidence on that
basis are difficult.
During the process of drafting the joint statement,
concerns arose that solicitors for the claimants may not
have complied with the TCC Guide paragraph 13.6.3.
That guidance provides that although the parties’
legal teams can assist experts with identifying issues
which the experts’ statement should address, they are
prohibited from negotiating or drafting the statements. Legal teams “should only invite the experts to consider amendments to the 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” and that if there are such concerns, they
should be raised with all the experts involved in the
statement.
The recent case of COPA v Wright [2024] EWHC 1198
(Ch) turned in large part on detailed forensic evidence
as to whether the defendant had falsified documents.
The defendant alleged that the claimant’s computer
forensics expert’s independence had been undermined due to the assistance he had received from the
claimant’s solicitors. The defendant complained that
the evidence had been prepared on the basis of at least
six to eight meetings with the solicitors and with “extensive” drafting assistance. However, the judge, Mellor J, gave this challenge short shrift. He said that in
view of his experience in Patent cases (and the volume
of work required of the expert in this particular case)
there was “nothing at all wrong” in the way the expert
had gone about his work. Mellor J noted that, at least
in Patent cases, “having a solicitor prepare a first draft of a
section is not considered objectionable provided, of course, (a)
it is based on matters already expressed by the expert (usually
in a meeting) and (b) the expert reviews the wording carefully
and makes any changes necessary so that it properly represents
his considered evidence and opinion in the text adopted in the
report which is served.”
The concerns that the claimants’ solicitors had failed
to comply with this guidance were first raised by the
defendant’s expert. In solicitors’ correspondence, the
defendant’s lawyers said that on reviewing changes
between versions three and four of the draft report,
the expert they had appointed told them “he was unable to account for the changes made” and “considered the
nature of the amendments made and the language employed
suggested that there may have been involvement from
lawyers.” They therefore queried this with the
claimants’ legal team.
Of course, in that case, Mellor J’s view of the process
undertaken by the expert no doubt reflected his conclusion that the evidence showed that the expert had
undertaken a “painstaking analysis, all very clearly
explained in minute detail”, and the defendant’s substantive criticisms were (variously) “absurd”, “misplaced”
and “hypocritical”. Notwithstanding that, the case is a
helpful reminder that, where a case turns on critical
expert evidence, solicitors can expect their own
approach to be under the microscope as much as the
expert themselves.
Through further correspondence, the claimants’
solicitors eventually conceded that their conduct with
respect to preparation of the draft report had not
Indeed, a failure by solicitors to oversee the expert
process can present an even more serious risk than
over-zealous engagement with them. Dana UK Axle
In Glover and Glover v AXA XL Insurance Company Ltd
[2024] EWHC 1257 (TCC), the court had given permission for expert evidence on structural engineering. The parties each appointed an expert, and the
experts collaborated on a joint statement under CPR
35.12(3) and the TCC Guide.
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