Blackpool Borough Council v Volkerfitzpatrick Ltd
| Jurisdiction | England & Wales |
| Judge | Stephen Davies |
| Judgment Date | 25 February 2020 |
| Neutral Citation | [2020] EWHC 387 (TCC) |
| Date | 25 February 2020 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: E50MA036 |
[2020] EWHC 387 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN MANCHESTER
TECHNOLOGY AND CONSTRUCTION COURT (QB)
Manchester Civil Justice Centre,
1 Bridge Street West, Manchester M60 9DJ
HIS HONOUR JUDGE Stephen Davies
SITTING AS A JUDGE OF THE HIGH COURT
Case No: E50MA036
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Martin Bowdery QC & Robert Clay (instructed by Squire Patton Boggs, Birmingham) for the Claimant
Anneliese Day QC & Sanjay Patel (instructed by Fieldfisher, London) for the Defendant
The Third Party was not present or represented
Serena Cheng QC (instructed by Beale & Co, London) for the Fourth Party
Simon Hale (instructed by Clyde & Co, London) for the Fifth Party
Hearing date: 12 February 2020
APPROVED JUDGMENT
I direct that pursuant to CPR PD 39A paragraph 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
His Honour Judge Stephen Davies
In this case the claimant, Blackpool Borough Council, claims substantial damages of around £6 million against the defendant, Volkerfitzpatrick Ltd, for alleged breaches of contract in relation to the design and construction of a new tram depot in Blackpool. In turn the defendant has brought third party proceedings against the third party, Range Roofing and Cladding Ltd, which have very recently been compromised, together with fourth party proceedings against the fourth party, RPS Planning and Development Ltd, and fifth party proceedings against the fifth party, Caunton Engineering Ltd, both of which remain live. The case is listed for trial over 4 weeks commencing Monday, 24 February 2020. It is a case which involves expert evidence in a number of disciplines. In particular, the claimant is heavily reliant so far as liability is concerned upon the expert evidence of its expert structural engineer, Mr Matthew Davis, and of its expert in corrosion, Dr Michael Clarke.
On 29 January 2020 the defendant made an application for orders that: (a) the claimant should not be permitted to rely upon the expert evidence of Mr Davis or Dr Clarke upon the ground that their evidence was inadmissible because their conduct had demonstrated that it could not be relied upon as properly independent; and (b) in consequence all of the claimant's claims should be struck out on the basis that without this expert evidence the claimant could not hope to succeed in its claims (apart from some modest claims which have already been admitted). The application is supported by the fourth party and the fifth party but is opposed by the claimant.
The application was listed for hearing over a full day on 12 February 2020, when I had the benefit of extremely helpful written and oral submissions from all counsel, to each of whom I am grateful. I also had the benefit of witness evidence in support and in opposition to the application in an application bundle which was helpfully provided in electronic as well as in paper format. At the conclusion of the hearing I announced my decision to refuse the application and that I would give my reasons in a written judgment to follow, which I now do.
The grounds of the application are summarised in paragraphs 5 and 6 of the witness statement of Mr Thorne, a partner in Fieldfisher the firm of solicitors which acts for the defendant, and which substantially repeats the content of a very detailed letter to the court and to the other parties dated 27 January 2020.
Paragraph 5 states as follows: “In short, the application is made on the grounds that the conduct of the claimant's appointed experts Dr Clarke and Mr Davis means that their independence has been compromised irreparably. Specifically, Mr Davis and Dr Clarke have: (i) contacted Socotec, the jointly instructed testing house that carried out corrosion testing at the tram depot, privately and without copying other corrosion experts into their communications; (ii) acted on the claimant's behalf to procure testing directly relevant to these proceedings from Socotec without disclosing the existence of that testing to other corrosion experts; (iii) directed Socotec as to how its testing should be carried out in private communications; (iv) in the case of Mr Davis, directed Socotec to keep the existence of the privately procured testing secret; and (v) in the case of Dr Clarke, taken objections to Socotec testing methodology in an expert report notwithstanding that Dr Clarke directed the manner in which testing was to take place”.
Paragraph 6 states that “as a result of their conduct, Dr Clarke and Mr Davis cannot now be called as independent experts as they have fallen far short of the standards required by CPR Part 35. The defendant therefore applies for their evidence to be ruled inadmissible”.
The Law
In making this application, the defendant relies upon the following key legal propositions.
The first is that if a party seeks to rely upon expert evidence where the expert has not complied with the recognised duties of an expert witness to be independent and impartial the court may exclude the evidence as inadmissible rather than merely taking such non-compliance into account when deciding what weight should be attached to the expert evidence. That proposition is derived from the decision of the UK Supreme Court in Kennedy v Cordia Services [2016] 1 WLR 597 at paragraph 51. It is not disputed.
The second is that a challenge to the admissibility of expert evidence ought to be dealt with at an interlocutory stage rather than being left to trial if it can fairly and properly be dealt with at that earlier stage. That proposition is derived from the principles stated and applied by Mann J in Meat Corporation of Namibia v Dawn Meats UK Ltd [2011] EWHC 474 (Ch) at paragraphs 43 to 46. It is not disputed, although the claimant draws my attention to the fact that the principles referred to in that case include the following: (i) the decision as to whether an expert should be permitted to give evidence in a case of challenged independence is a matter of fact and degree; (ii) the judge will have to weigh the alternative choices openly if the expert's evidence is excluded, having regard to the overriding objectives of the CPR; (iii) if the challenge to the independence is not sufficient to preclude the expert from giving evidence, it may nevertheless affect the weight of the expert's evidence; (iv) in some circumstances it might not be possible to determine with sufficient clarity whether the circumstances justify ruling inadmissible the expert evidence at an interlocutory stage, in particular where the facts may be in dispute and may require further investigation in evidence. In such a case it might have to be decided at trial.
The summary given by Cresswell J as to the duties of an expert witness in The Ikarian Reefer [1993] 2 Lloyd's Rep 68 (at pp 81–82) has been widely applied, remains authoritative and repays setting out in full, omitting case citations:
“The duties and responsibilities of expert witnesses in civil cases include the following:
1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate.
3. An expert witness should state the facts or assumptions on which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
4. An expert witness should make it clear when a particular question or issue falls outside his expertise.
5. If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.
6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side's expert's report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court.
7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.”
Paragraphs 1 and 2 of that guidance are enshrined in CPR Part 35.3 which, as is well known, provides that it is the duty of experts to help the court on matters within their expertise and that such duty overrides any obligation to the person from whom they have received instructions or by whom they are paid.
Further detailed guidance is to be found in CPR Practice Direction 35. As relevant to this case, I have been referred to the following.
Paragraph 3.2, which requires at (3) that an expert's report must contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based, and at (5) that an expert's report must state who carried out any examination, test or similar activity which the expert has used for the report. Paragraph 5 permits experts to be cross-examined...
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Blackpool Borough Council v Volkerfitzpatrick Ltd
...the trial and thus to strike out the claim, which was vigorously pursued and which failed: see my judgment on that application at [2020] EWHC 387 (TCC). Ms Day submitted that there was no basis to draw any such inference. In the absence of any contemporaneous explanation and any other rati......
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Blackpool Borough Council v Volkerfitzpatrick Ltd
...for an order that the claimant might not rely on the evidence of Dr Clarke or Mr Davis which I refused: see my judgment reported as [2020] EWHC 387 (TCC). For present purposes it is sufficient to record that at trial no suggestion was made or evidence given by any of the other parties or t......
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Experts Under Scrutiny: TCC Considers Rules And Best Practice In Communications With Single Joint Experts And Refuses To Rule Expert Evidence Inadmissible
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