This case concerns the fundamental principle of the English legal system that experts should be independent and that their obligations are to the Court, not to act as advocates for their instructing solicitors, or the paying client. These obligations on an expert witness to act independently are embodied in the Civil Procedure Rules (‘CPR’) Part 35.
The Defendant company (‘K’) operated a wood processing and wood product manufacturing plant. The Claimants, the Chirk Nuisance Group Litigation (‘CNGL’), and consisting of some 159 residents, brought a group action against K alleging public and/or private nuisance caused by dust, noise or odour emissions as a result of the management or operation of the Defendant’s site. Liability was denied. Both parties were given permission to rely on experts in the disciplines of dust dispersion modelling and dust analysis modelling. The Claimant chose to rely on a single expert for both disciplines. A court order in March 2021 stated; “In order to ensure that the parties’ experts are reporting on the same basis, the experts are to continue discussions to agree between them, and identify areas where they have not agreed, their approach, and they are to prepare and file with the court a document in respect of each report.“
Expert reports were exchanged in April 2021, with joint discussions between the experts starting thereafter, with a view to producing a “joint statement“. The purpose of the Joint Statement of Experts (‘JSE’) is to assist the Court or Tribunal by setting out in concise form what the experts can agree upon, thereby narrowing the issues in contention, and what they cannot agree upon and their reasons for disagreeing with another expert on an issue.
Ignorance of the law excuses no man from practicing it.”
Addison Mizner
After several months and no sign of a completed JSE, it came to light in December 2021 (through correspondence between both parties’ solicitors) that CNGL’s expert had been in communication with CNGL’s solicitors during this period of producing the JSE. It appeared that CNGL’s expert had been forwarding “work in progress“, including copies of the JSE to his instructing solicitors and had sent over an initial draft on an unsolicited basis. On further investigation it seemed that there had been frequent communication (68 comments on the drafts, typographical and otherwise) including email and telephone discussions about the content of the JSE between May and November 2021. Their expert had been acting as such for three years and had charged fees of around £225,000. K made an application to the court alleging that the expert was not truly independent since he had acted as an advocate for CNGL. K contended that the only option to the court was to revoke CNGL’s permission to rely on their expert. Although this was a far-reaching move which would inevitably result in substantial financial losses and significant delay to the case being brought (as a new expert would have to be found), it was the only sanction available to the Court.
CNGL’s solicitors acknowledged that their conduct had been inappropriate and that there had been “serious transgressions“, accepting that they’d made at least sixteen comments relating to “advice and suggestions as to content“, but argued that a sanction would be “entirely disproportionate” and “potentially disastrous” for the 159 households bringing this claim. In using this argument, they were seeking to rely on the decision made in BDW Trading v Integral Geotechnique [2018] EWHC 1915 (TCC) (25 July 2018).
In considering the case and all the issues it raised, Senior Master Fontaine stated that in sending over the first draft unsolicited, the expert was clearly seeking his instructing solicitors’ views. These solicitors had already accepted that sixteen comments were on substantive issues in the report, even though many other comments were not. Senior Master Fontaine stated that, having seen the communications between the parties, her overriding concern was that the expert “strongly regards himself as an advocate for the Claimants, rather than an independent expert whose primary obligation is to the court“. The Court had no confidence in his ability to act in accordance with his obligations as an expert witness. His duties under CPR Part 35 had been undermined, and she revoked the Court’s permission to rely on him, notwithstanding the difficulties of expense and delay it would cause to CNGL. Although the legal litigation process was far down the line, no trial date had been set and she would allow CNGL to appoint a new expert. Had these matters come to light at trial, no substitution would have been permitted. In making this sanction, the Senior Master had regard to the conduct of CNGL’s solicitors as well as the conduct of the expert. The solicitors had been less than transparent and only revealed the full extent of their communications with the expert under duress.
She observed that “it is important that the integrity of the expert discussion process is observed so that the court, and the public, can have confidence that the Court’s decisions are made on the basis of objective evidence.” The application was allowed.
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