Allen Tod Architecture Ltd ((in Liquidation)) v Capita Property and Infrastructure Ltd (previously known as Capita Symons Ltd)
| Jurisdiction | England & Wales |
| Judge | His Honour Judge David Grant |
| Judgment Date | 26 August 2016 |
| Neutral Citation | [2016] EWHC 2171 (TCC) |
| Date | 26 August 2016 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: 3BM5 0103 |
[2016] EWHC 2171 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
TECHNOLOGY & CONSTRUCTION COURT
His Honour Judge David Grant
Case No: 3BM5 0103
RULING on expert opinion evidence
Ben Patten QC appeared for the claimant, instructed by Mills & Reeve, 78–84 Colmore Row, Birmingham B3 2AB
Lynne McCafferty of counsel appeared for the defendant, instructed by Beale & Co, 85 King William Street, London EC4N 7BL
By an application notice dated 5 July 2016, the defendant applied for specific disclosure of (a) the claimant's letters of instruction to its first expert; (b) the claimant's letter of instruction to its new expert, Prof John Roberts; and (c) any report, document and/or correspondence in which the substance of the expert opinion of the first expert was set out, whether such was in draft or final form. The defendant stated that the application arose out of the claimant's late and unexpected change of structural engineering expert, and further asked for an order that permission for the claimant to rely upon the expert report of Prof Roberts dated 24 June 2016 was to be conditional upon the claimant disclosing the documents listed above.
In response to the application the claimant has disclosed both those letters of instruction, together with the report of its first expert dated 12 February 2016. However, the claimant has declined to disclose any further material.
As set out in its evidence in reply, and as developed in paragraph 15 of Miss McCafferty's written submissions, the defendant continues with its application in respect of the following:
(1) the notes attached to the e-mail from the claimant's first expert to the claimant's solicitors dated 19 December 2014: see paragraph 14 of the witness statement of Neil Frankland, where Mr Frankland states that "it was not however until 19 December 2014 that (the first expert) came back to us with responses to some of the questions that had been put to him by counsel" and page NF1/15 of the exhibit thereto, where the first expert writes "please find attached my notes to date";
(2) the preliminary report attached to the e-mail from the claimant's first expert to the claimant's solicitors dated 6 July 2015: see paragraph 24 of the witness statement of Neil Frankland, where Mr Frankland states that the first expert "provided us with a summary of his views", and page NF1/28, where the first expert described the document as "my preliminary report to date";
(3) any document within which the claimant's first expert provided his views prior to the mediation between the parties which occurred on 12 April 2016: see paragraph 15.3 of Miss McCafferty's note, where she states that "it is unclear from exhibit NF1 how those views were provided, but to the extent that those views were provided in writing (and) set out the substance of (the first expert's) views, (they) should be disclosed". See in this regard paragraph 36 of the witness statement of Neil Frankland, when Mr Frankland states that "… we needed to get (the first expert's) input to the mediation with the defendant. He was ultimately unable to attend the mediation but … he did provide his views on matters raised by counsel, and he did support the contentions made in the claimant's mediation paper."
The claimant resists disclosure of those further documents essentially on three grounds. The first is that each of those documents is privileged, and thus should not now be the subject of an order for disclosure. The second is that in the circumstances of the case the claimant has now disclosed sufficient material to provide a proper basis for the court to permit the claimant to call Prof Roberts as its expert witness at the trial of this action, and in such circumstances it is not necessary and/or proportionate to order the claimant to disclose any further material in order to permit the claimant to call Prof Roberts at trial. The third is that, on the evidence, this is not a case where the claimant has been "expert shopping", in the sense of it having obtained an opinion and/or a report from its first expert which it regarded as unfavourable, and now seeks to adduce the opinion and/or a report from Prof Roberts in place of its first expert; in such circumstances the claimant should be given permission to adduce expert opinion evidence from Prof Roberts without having to disclose the further material sought by the defendant.
As directed in the course of the oral hearing, I shall refer to the claimant's first expert as "expert A", and to Prof Roberts either by name or as "expert B".
The background
The case concerns a project to renovate Barnsley Civic Hall. The employer was Barnsley MBC ("Barnsley"); the claimant was engaged by Barnsley to provide:
"… a one-stop construction management service under which (the claimant) would be Barnsley's architect, design consultant and services consultant. Agreement was reached in January 2005 … although the appointment was not reduced to writing until 14 September 2006". In turn, the claimant retained the defendant "… to provide it with structural engineering advice and other services … (that) agreement was never reduced to writing".
The claimant's case is that:
"… after a number of smaller 'structural' issues had arisen, the project hit very serious problems in mid-2007, when weaknesses in the walls and foundations were encountered, particularly around grid line E. The project was delayed and as a result of those delays (the contractor) was granted extensions of time."
See paragraphs 6, 8 & 11 of Mr Patten QC's written submissions.
In her written submissions Miss McCafferty summarised the present proceedings as follows:
"… this case concerns a claim in professional negligence against (the defendant) a structural engineer, by the claimant, an architect who was engaged … in connection with the renovation and expansion of the Civic Hall in Barnsley …. Barnsley brought a claim in professional negligence against (the claimant) in arbitration proceedings, which was settled in October 2015. (The defendant) denies liability and causation, and challenges the reasonableness of the settlement sum that (the claimant) agreed with Barnsley."
Barnsley's initial letter of claim against the claimant was dated 19 January 2009. The claimant sent its separate letter of claim against the defendant almost exactly a year later, on 20 January 2010. The parties then agreed a series of standstill agreements. However, on 13 December 2013 the claimant issued these proceedings against the defendant. On 10 April 2014 the claimants served both the claim form and particulars of claim; on 4 September 2014 the defendant served its defence.
However it was not until 16 September 2014 that the claimant instructed expert A. In paragraph 12 of his witness statement Mr Frankland explained that:
"… before instructing (expert A) we did not seek preliminary views from him. The only enquiries we made from him were as to his expertise and his availability."
Mr Frankland then exhibited a copy of the claimant's solicitors' instructions to expert A dated 16 September 2014. It thus appears that the notes which expert A provided on 19 December 2014 were prepared pursuant to those instructions.
Between 20 May and 18 June 2015 the claimant's solicitors pressed expert A for "his written report", but it was not forthcoming: see paragraph 22 of Mr Frankland's witness statement. In paragraph 23 of his witness statement he stated:
"(Expert A) eventually responded on 18 June 2015 to say that (effectively) his report remained a work in progress … My colleague … chased again for the draft report on 23 June 2015 only to be told it still was not available."
In paragraph 24 he stated:
"(Expert A) was chased again on 1 July and eventually on 6 July he provided us with a summary of his views …"
That "summary" is what expert A described as his "preliminary report" in his e-mail to the claimant's solicitors dated 6 July 2015 at NF1/28.
Meanwhile, Barnsley commenced arbitration proceedings against the claimant. Barnsley's points of claim in that arbitration were dated 27 July 2015: see paragraph 21 of the first witness statement of Sheena Sood. It was against that background that the first CMC was held on 3 September 2015, and a detailed order for directions was made which provided a procedural timetable through to trial. As it happened, the arbitration between Barnsley and the claimant was settled for approximately £2 million shortly after that first CMC, on 14 October 2015. The claimant now seeks to recover that settlement sum in these proceedings.
The parties then served amended statements of case in November 2015. The claimant held a conference with expert A on 12 January 2016, following which the claimant's solicitors sent a further or supplementary letter of instruction to expert A: see paragraph 30 of Mr Frankland's witness statement. Shortly afterwards, on 12 February 2016, expert A produced what Mr Frankland describes as "a draft report": see paragraph 34 of his witness statement; that document is produced at pages NF1/55–71.
It is against that background that Mr Frankland describes the claimant's decision to change experts in paragraph 35 of his witness statement, where he states:
"The position with (expert A) had reached the end of the line. Whilst supportive of the claim against the defendant, he was clearly unable to properly manage the documents in the case and express his views with the clarity that would assist the court. He was also unresponsive when we contacted him to review matters. We discussed the matter at length with leading counsel. Changing expert at this very late stage was not...
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