Dana UK Axle Ltd v Freudenberg FST GmbH
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Joanna Smith |
| Judgment Date | 26 May 2021 |
| Neutral Citation | [2021] EWHC 1413 (TCC) |
| Docket Number | Case No: HT-2018-000046 |
| Date | 26 May 2021 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2021] EWHC 1413 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Joanna Smith
Case No: HT-2018-000046
Geraint Webb QC and Harrison Denner (instructed by Crowell & Moring) for the Claimant
Luke Wygas and Rebecca Keating (instructed by Fladgate LLP) for the Defendant
Hearing date: 14 May 2021
Judgment Approved by the court for handing down
Introduction
This claim arises out of the alleged premature failure of pinion seals (“ the Seals”) manufactured by the Defendant (“ FST”) and supplied to the Claimant (“ Dana”) during a period between about September 2013 to February 2016. The Seals were fitted by Dana, a manufacturer and supplier of automotive parts, onto vehicle rear axles which Dana then supplied to Jaguar Land Rover for installation into 9 different vehicle models.
The trial commenced on 5 May 2021 and the Court has heard from the parties' witnesses of fact and from Dana's three technical experts. However, in circumstances which I shall outline in more detail below, Dana now applies (on Day 7 of the trial) to exclude FST's technical expert evidence.
Procedural Background to the Application
By an order dated 15 February 2021, Jefford J varied the terms of the existing CMC Order so as to provide for the service of expert evidence in the fields of engineering and materials/polymer science by 26 February 2021. However, FST did not serve its technical expert evidence (from Professor Salant, Mr Jackowski and Professor Mead, together “ the Experts”) until 6 March 2021, 8 days late.
Notwithstanding FST's failure to file an application for relief from sanctions in advance of the Pre Trial Review on 19 March 2021, Dana indicated that it would not object to FST being granted such relief provided that various defects in the reports of FST's technical experts were remedied. Those defects were pointed out by Dana in its skeleton argument for the Pre Trial Review and, insofar as relevant to this application, may be summarised as follows:
a. Contrary to paragraph 55 of the Guidance for the Instruction of Experts in Civil Claims 2014 (“ the 2014 Guidance”), referenced in CPR PD35, none of the three technical expert reports served by FST identified the documents on which each of the Experts had relied. Whilst there was some reference to academic texts, none of the reports included a list of documents provided by FST or its solicitors, Fladgate LLP (“ Fladgate”) to each individual expert. Dana explained that this was of particular concern owing to the long history of difficulties in obtaining disclosure from FST of its relevant manufacturing processes and procedures. Indeed Dana had become aware that detailed material containing technical information had been made available to FST's experts long before it had been provided to Dana's experts and, further, that it had not been listed in the reports of FST's Experts. Dana pointed to paragraph 30 of the 2014 Guidance which provides that “ Experts should try to ensure that they have access to all relevant information held by the parties and that the same information has been disclosed to each expert in the same discipline”.
b. It was apparent from the reports of Mr Jackowski and Professor Mead that they had undertaken site visits to factories operated by FST. Mr Jackowski had visited the FST plant in Kecskemet, Hungary, whilst Professor Mead had apparently visited a facility in Georgia, USA. Notwithstanding the terms of the TCC Guide at paragraphs 13.3.2 and 13.3.4, these visits had taken place without putting Dana on notice and so without affording Dana's technical experts a similar opportunity to inspect FST's operations. Mr Jackowski's report stated that he had “ examined all equipment, processes and procedures” and that “ All FST personnel were openly communicative to all my questions, openly demonstrated and explained all their processes and manufacturing and test equipment and provided full cooperation and transparency in my investigation”, but no photographs, notes of the visits, notes of interviews or other documents were provided with his report evidencing the information he had collected. Professor Mead's report also failed to provide any similar details of her site visit.
c. When referring to data or other information, the reports of FST's Experts did not always provide reference to the document or source of data relied upon, thereby causing prejudice to Dana's legal team in trying to read and understand those reports. FST had disclosed approximately 8,500 documents and it would not be reasonable or proportionate to expect Dana's legal team to search the entirety of the disclosure in order to try to identify specific documents on which FST's Experts intended to rely.
During the course of argument at the Pre Trial Review, Mr Wygas, on behalf of FST, made the point that “ Dana's experts had everything FST had”, a point that he repeated before me on the first day of the trial. By this I understood him to mean that it was his understanding that Dana's experts had been given access to the same documentation and information that had been made available to FST's Experts. As has now become abundantly clear, however, this was a point on which Mr Wygas was, regrettably, entirely mistaken.
The order made by O'Farrell J at the Pre Trial Review (“ the PTR Order”) granted relief from sanctions in respect of the late service of FST's three technical expert reports and permitted reliance on those reports at trial:
“provided that, by 5pm on 26 March 2021, it shall file and serve revised expert reports amended to comply fully with the Civil Procedure Rules and guidance by:
1.1 Providing full details of all materials provided to the Experts by the Defendant's solicitors and/or by the Defendant itself;
1.2 Disclosing all documents (including photographs) produced by or provided to each expert during any site visit, including any notes taken by the expert of information provided to the expert/seen by the expert during any such visit (including notes of statements from operators or other staff etc);
1.3 Identifying the source and details of the data and other information relied on in support of each proposition/opinion.”
FST served revised expert reports for Mr Jackowski and Professor Salant on 26 March 2021 together with lists of documents on which each of its three Experts had relied. However, it was Dana's view that these failed to satisfy the conditions imposed by paragraphs 1.1 to 1.3 of the PTR Order. Professor Mead did not supply an updated report.
Dana was so concerned by what it considered to be an ongoing non-compliance that it filed and served further written submissions on 29 March 2021 addressing, in Part II, the reasons why the re-served reports remained in breach of the Civil Procedure Rules and guidance and/or the requirements of the PTR Order. In particular, Dana identified that there was a continuing failure:
a. to provide a list of materials sent by FST or Fladgate to its Experts. Dana noted that “… it is a matter of real concern to the Claimant that the Defendant, or its solicitors, have passed material relating to the Defendant's processes and procedures to the three experts, which material was not otherwise contained in the disclosure documents”. Rather than providing a list of materials, Fladgate had simply asserted in an email of 26 March 2021 that “ The Defendant's experts had been provided with access to an/or copies of documents provided by the parties in disclosure as well as pleadings and witness statements”, a response that failed to state whether FST's experts had been provided with anything else, in addition to the disclosure documents. The failure to include a list of the materials provided to each of the Experts in his or her report meant that the assertion from Fladgate was not verified by a statement of truth, as would have been the case had each of the reports been revised to address the issue, as had been required by the PTR Order.
b. to identify documents produced or provided to the Experts on site visits. Whilst Fladgate confirmed in its email of 26 March 2021 that images prepared by Mr Jackowski during his site visit had been provided as an annex to his report and that he had no further documents “ prepared during site visits in his possession”, this failed to address the question of whether any other documents had been produced by him or provided to him during his site visits and whether or not he had retained those documents. As for Professor Mead's site visit, FST did not confirm whether or not any other documents had been produced by or provided to Professor Mead during this (or any other) site visit or inspection.
c. to identify the data source or document relied upon in support of a particular statement or proposition.
On 6 April 2021, in an attempt to overcome some of these issues, Dana posed targeted CPR Part 35 Questions (“ the CPR Part 35 Questions”) to each of FST's Experts, pointing out in the preamble to its requests of Professor Salant and Mr Jackowski that “ the Claimant's position is that the revised report fails in material respects to comply with the Court's order” and noting in the request to Dr Mead that she had not served an updated report. The Experts each responded on 20 April 2021 (“ the CPR Part 35 Responses”). Insofar as relevant for present purposes, the questions to the Experts included the following matters:
a. detailed questions to Mr Jackowski about his site visit to the Hungary plant,...
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