Aird and Another v Prime Meridian Ltd
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE SMITH,Lord Justice May,LORD JUSTICE MAY,SIR MARTIN NOURSE |
| Judgment Date | 21 December 2006 |
| Neutral Citation | [2006] EWCA Civ 1866 |
| Docket Number | A1/2006/2132 |
| Date | 2007 |
| Year | 2006 |
| Court | Court of Appeal (Civil Division) |
[2006] EWCA Civ 1866
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
(HIS HONOUR JUDGE COULSON QC)
Lord Justice May
Lady Justice Smith
Sir Martin Nourse
A1/2006/2132
MR O TICCIATI (instructed by Messrs Hill Dickinson Llp) appeared on behalf of the Appellant.
MR J BACON (instructed by Messrs Halliwell Llp) appeared on behalf of the Respondent.
One of the prominent recommendations in Lord Woolf's report of “Access to Justice” of July 1996 was for a series of reforms of civil procedure relating to expert witnesses. A mature version of these recommendations is now to be found as Part 35 of the Civil Procedure Rules. Two particular problems which Lord Woolf addressed were that experts' reports and evidence had tended to be too voluminous, expensive and time-consuming, and that some experts were hired or thought they were hired to be advocates rather than to give their independent opinion, uninfluenced by the interests and views of the party who had engaged them. So it is that rule 35.1 of the Civil Procedure Rules stipulates that expert evidence shall be restricted to that which is reasonably required to resolve the proceedings; that rule 35.2 defines an expert for the purposes of part 35 as an expert who has been instructed to give and prepare evidence for the purpose of court proceedings; that rule 35.3 provides that it is the duty of an expert to help the court on the matters within his expertise and that this duty overrides any obligation to the person from whom he has received instructions or by whom he is paid; that rule 35.10 provides that an expert's report must comply with the requirements set out in the relevant practice direction and contain at the end of it a statement that the expert understands his duty to the court and has complied with it; and that paragraph 1.2 of the Part 35 Practice Direction stipulates that the report of the expert should be the independent product of the expert, uninfluenced by the pressures of litigation. These requirements are, or should be, now well understood by those who act as expert witnesses in civil litigation. They necessarily mean that those who instruct experts to act for them in civil litigation authorise them to act as such in conformity with the rules.
Rule 35.12 adopted and refined a procedure for discussions between experts which had featured in a less developed form in Order 38, rule 38, of the former Rules of the Supreme Court, and which had its origin in procedures in the Official Referees' Court, now the Technology and Construction Court. Rule 35.12 provides as follows:
“(1) The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to —
a) identify and discuss the expert issues in the proceedings; and
b) where possible, reach agreed opinion on those issues;
(2) The court may specify the issues which the experts must discuss.
(3) The court may direct that following a discussion between the experts they must prepare a statement for the court showing —
a) those issues on which they agree; and
b) those issues on which they disagree and a summary of their reasons for disagreeing;
(4) The content of the discussion between the experts shall not be referred to at the trial unless the parties agree.
(5) Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.”
In my view, the structure of this rule is clear. It provides a balance between the need for the parties' experts to be able to have a free discussion about issues amenable to their expert opinion which are relevant in the case without the details of those discussions becoming material which can be used in the proceedings, with the court's need to have some proportionate and useful product of those discussions. The statement for the court for which rule 35.12(3) provides is a statement which, if it is directed, the experts must produce. It is a statement which, from the very wording of the rule, is available for use in the proceedings. It is not protected by privilege. One of its purposes is to define and narrow the contentious issues. An agreement of this kind is likely to influence any decision the court may reach and the court is likely to make findings consonant with what the experts have stated to be their agreement. But the court is not bound to do so and rule 35.12(5) expressly says that the experts' agreement shall not bind the parties unless they expressly agree so to be bound.
A stated agreement by the experts is not therefore, strictly speaking, an admission. It is certainly not an admission by the parties, because it is not their statement and they are not bound by it. It is not perhaps apt to characterise it as an admission by one or both of the experts, but rather as an expression of agreement or, as the case may be, disagreement by them in response to an order of the court and in performance of their overriding duty to the court. As I have said, by instructing experts in civil proceedings the parties authorise their experts to do this. It would no doubt be possible for a party instructing an expert in civil proceedings to instruct that expert not to proceed in accordance with an order under rule 35.12(3). But I think that, if this happened, the expert would have to decline to continue to act as an expert in the proceedings, or at least to seek the court's direction in that respect. For, in truth, the instruction would be an instruction not to perform the expert's duty to the court. It would be so because the postulated instruction would be an instruction to disobey an order of the court for which the Rules provide, and an instruction to the expert not to perform his overwriting duty to the court, for which again the Rules provide.
This appeal concerns the operation of rule 35.12 and its interrelation with an order staying the proceedings for alternative dispute resolution by means of mediation. The court will always encourage mediation in an appropriate case. It is well-known and uncontentious in this case that mediation takes the form of assisted “without prejudice” negotiation and that, with some exceptions not relevant to this appeal, what goes on in the course of mediation is privileged, so that it cannot be referred to or relied on in subsequent court proceedings if the mediation is unsuccessful. In the present case the parties reinforced this by including a provision in their mediation agreement that they would “keep confidential all information, whether oral or written or otherwise produced for or at the mediation”. This cannot of course be taken absolutely literally, since it obviously would not apply to documents obviously produced for other purposes which were needed for and produced at the mediation; for example, their building contract or the antecedent pleadings in the proceedings. There was also a note in the agreement to the effect that evidence otherwise admissible would not become inadmissible simply because it was used in mediation. But the general intent of the provision is clear and it accords with the generally understood “without prejudice” nature of mediation.
In the present case the court ordered and later extended a stay of the proceedings for mediation. The court did not order the parties to mediate. The court would never, I think, sensibly make such an order, since the court cannot, in the real world, compel a party who does not want to to participate in a mediation. The court can and does order a stay of proceedings for mediation, almost always when all parties have indicated that they are willing to try. The court may also perhaps, on occasions, consider making an adverse costs order against a party who is shown to have unreasonably refused to participate in mediation, although I personally regard that as a power to be exercised with caution. Since the court cannot order the parties to participate in mediation, neither can the court make orders stipulating the details of how the parties should conduct a mediation. The most the court can do is to encourage.
The claimants engaged the defendant to provide architectural services for the construction of a house. Things appear to have gone wrong and in these proceedings the claimants contend, in amended Particulars of Claim covering 45 pages, that the defendants were negligent and in breach of their professional duty in a large number of detailed respects. The proceedings in the Technology and Construction Court were under the case management of HHJ Thornton QC. There was eventually produced a schedule of damages, in the form of an Official Referee's schedule, produced by the claimants pursuant to an order of 28 January 2005, to which the respondents responded also in schedule form. Various orders were made to achieve this. The court also made an order staying the proceedings for alternative dispute resolution whose implementation was delayed while the schedules were prepared.
There was a further case management conference on 19 July 2005, at or after which Judge Thornton made an order which included an order in these terms:
“By 23.9.05, the parties' architectural experts (Peter Blockley for the Claimants and Frank Cleveland for the defendants) do meet without prejudice and prepare a statement of the issues upon which they are agreed and those upon which they are not agreed with a brief statement of...
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