Experts' joint statements: the consequences of parties interfering in the process

In a recent decision, the High Court has granted the claimants permission to change experts following their solicitors' admitted interference with the drafting of the experts' joint statement, on the basis that privilege was waived over the solicitors' comments on the drafts: Glover and another v Fluid Structural Engineers & Technical Designers Ltd and others [2024] EWHC 1257 (TCC).

The judgment reiterates the tight restrictions on parties and their lawyers having any input into the preparation of the experts' joint statement. In this case, the court accepted that the solicitors had misunderstood the restrictions, rather than knowingly disregarding them, and that the revisions to the drafts were not intended to, and did not, make the expert's expressed views on material issues more favourable to the claimants. However, as the solicitors conceded, the conduct in proposing amendments behind the scenes constituted substantial and impermissible interference and meant that the court could not be satisfied as to the expert's independence.

In granting permission for a new expert, the court was influenced by the centrality of the expert evidence to the claimants' case and the lack of an intention to alter the expert's expressed views, as well as case management considerations. In particular, the court made clear that it would not have granted permission, despite the resulting disadvantage to the claimants, if that would have disturbed the scheduled trial date.

The decision is also of interest for its consideration of the extent to which privilege should be waived over documents recording the expert's views. As discussed in previous blog posts (for example here and here), the courts' approach to that question is heavily influenced by a desire to discourage "expert shopping" and to minimise any unfairness to opposing parties. Here the court refused to order disclosure of the solicitors' attendance notes and email communications with the expert, where privilege had already been waived over their comments on the draft statements and the court did not consider it to be a case of expert shopping.  

Background

In the context of a dispute relating to damage caused by renovation works on the claimants' property, the court had given the parties permission to call expert witnesses, including structural engineers. Standard directions were made for the experts to prepare a joint statement of relevant issues, under CPR 35.12(3), prior to the exchange of their reports. 

After various drafts of a joint statement were exchanged between the two engineering experts, the defendant's expert raised concerns that significant changes to the views expressed by the claimants' expert (Mr H) suggested the claimants' legal team had been involved in the process. The defendant asked the claimants' solicitors to confirm that there had been no such involvement. Failing that confirmation, the defendant issued an application seeking revocation of the claimants' permission to rely on Mr H's evidence.

The claimants' solicitors then admitted that they had made comments on and proposed amendments to various drafts of the joint statement, in a manner that they accepted was not compliant with the relevant rules and guidance.

The claimants applied for the court's permission to replace Mr H with a new structural engineering expert. In support of that application, they waived privilege over the drafts of the joint statement and their solicitors' comments on the drafts.

The defendant resisted the appointment of a new expert and, in the alternative, submitted that any permission should be conditional on the claimants giving more extensive disclosure of privileged communications, including attendance notes and written communications between their solicitors and Mr H.

Decision

The High Court (Mr Simon Lofthouse KC) granted the claimants permission to rely on the new expert, without requiring the wider disclosure sought by the defendant.

The judge reviewed relevant guidance and authority on the role of lawyers in the joint statement process. In particular, he noted that the Technology and Construction Court Guide states:

"Whilst the parties' legal advisers may assist in identifying issues which the statement should address, those legal advisers must not be involved in either negotiating or drafting the experts' joint statement. Legal advisers 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."

The judge held that the claimants' solicitors' conduct here clearly constituted substantial and impermissible interference in the expert statement process, contrary to both authority and the applicable guidance. That failure was not deliberate, but arose because they had failed to understand the applicable rules and guidance and believed that it was permissible to amend the draft joint statement where they thought the content did not reflect the pleaded issues.

It was clear that, as the claimants' solicitors accepted, the court could not be satisfied as to Mr H's independence, although the judge emphasised that there was no evidence from Mr H himself. 

The judge reviewed a number of authorities considering the circumstances in which permission should be given for a replacement expert and the conditions to be attached to any such permission. There was no reported decision "on all fours" with this case. It therefore had to be decided against the backdrop of the solicitors' conduct and the overriding objective.

The judge considered that, while there was no excuse for the solicitors' conduct, in this case justice was best served by maintaining the trial date if possible and ensuring that the defendant had sufficient disclosure to understand Mr H's views (however unlikely it was that it would wish to deploy his report as evidence).

The court granted permission to rely on a new expert, for the following reasons:

• Structural engineering evidence was central to the issues. Failure to lead such evidence could be an insurmountable obstacle to the claimants' liability case.
• The expert evidence could be timetabled in a way that preserved the trial date and did not cause unfairness to the defendant. Notably, the judge said that if giving permission had meant the loss of the trial date, he would not have granted permission for that reason alone.
• The evidence did not support a conclusion that there was an attempt to change the expert's opinion on the central issues in dispute, and the judge did not consider that the revisions changed the expert's expressed views in favour of the claimants. The changes could be seen as seeking to reflect, however misguidedly, what the solicitors believed to be the views of Mr H.
• The conduct complained of was that of the solicitors. Refusal to permit a replacement expert might well result in a change of solicitors, which could adversely affect the trial timetable.
• The solicitors had made a full and frank admission and apologised to the court and to the defendant.

The judge declined to make permission conditional on the claimants providing the additional disclosure sought by the defendant:

• This was not a case of expert shopping in any pejorative sense. The judge accepted the solicitors' evidence that they considered Mr H to support the claimants' pleaded case, and the intention in seeking to change experts was to resolve the concerns about their own non-compliance and the independence of Mr H's evidence.
• The extent of disclosure already given by the claimants, including waiving privilege over their solicitors' comments on the draft joint statements, satisfied the requirement in the authorities for an opponent to be given full information about the original expert's opinions. Even if there was a material change in Mr H's support of the claimants' case (which had not been demonstrated), there was no reason to think that the opinions set out in the original drafts, before revision, were not his own.
• Disclosure of the solicitors' attendance notes (which the defendant had been seeking) could lead to practical difficulties in producing redacted versions that were of any probative value.

The court ordered the claimants to pay the costs thrown away as a consequence of the change in expert, as well as 30% of the defendant's future costs of considering the new joint statement and the report of the replacement expert.