The High Court recently issued a stark reminder that breaches of the rules on expert evidence will not be tolerated. In the recent case of Dana UK AXLE Ltd v Freudenberg FST GmbH, the court excluded expert evidence during trial as a result of serious and unexplained breaches of the terms of a court order and the basic principles of Civil Procedure Rule 35.
The claim arose out of the alleged premature failure of pinion seals manufactured by FST and supplied to Dana from around September 2013 to February 2016.
The parties were given permission to serve expert evidence in the fields of engineering as well as materials and polymer science. FST did not serve its expert reports until eight days after the deadline and failed to apply for relief from sanctions. Dana did not object to FST being granted relief provided that various defects in the reports were remedied. The defects were as follows:
- none of FST's reports identified the documents on which the experts had relied;
- FST's experts had undertaken site visits to its factories without notice to Dana and without affording Dana's technical experts a similar opportunity to inspect FST's operations; and
- when referring to data or other information, FST's reports did not always provide a reference to the document or source of data relied upon.
At the pre-trial review, the court granted relief from sanctions in respect of the late service of the reports and decided that FST would be permitted to rely on them at trial provided that they served versions with the outlined defects rectified that were therefore fully compliant with Civil Procedure Rule 35.
FST served amended versions of the reports. However, Dana considered that these failed to satisfy the conditions imposed by the pre-trial review order. Ultimately, on day seven of the trial, Dana made an application for FST's reports to be excluded entirely from the proceedings.
The court granted Dana's application and excluded FST's reports on the basis that there had been multiple "serious and unexplained" breaches of the pre-trial review order:
- There had been a "serious breach" of the requirement for FST to provide full details of all materials provided to its experts. It was essential for the court to understand what information and instructions had been provided to the experts in order to understand whether they were operating on a level playing field.
- It was "entirely unacceptable" that, not only had FST's experts engaged in site visits without informing Dana's experts and without keeping records, but it also became clear during trial that more site visits had taken place than had been disclosed in the reports.
- The expert reports contained several opinions which were based on verbal evidence from individuals at FST or which had not been verified, which was "a paradigm example of what can go wrong if an expert is left to obtain information direct from his clients without legal involvement".
The court agreed with Dana that these breaches were unlikely to have been inadvertent given that FST could not have complied with the pre-trial review order without revealing multiple and serious breaches of Civil Procedure Rule 35.
The court commented that FST had committed "particularly serious" breaches of Civil Procedure Rule 35, which in themselves would have been sufficient to justify the exclusion of the reports:
- There had been a free flow of information between FST's experts and in-house technical specialists with no, or very little, oversight from FST's solicitors and it is inevitable that the experts had been privy to information that had not been shared with Dana's experts.
- FST had been involved in the preparation of the reports. The notes to Civil Procedure Rule 35 and the Technology and Construction Court Guide make it clear that the parties' legal advisers should not be involved in the negotiation or drafting of expert reports, and the same prohibition applies to the parties themselves.
- The experts' opinions appeared to have been directly influenced by FST, which at the very least called into question the independence of the reports and the extent to which they provided objective and unbiased opinions.
This decision is a stark reminder that admission of expert evidence is a matter of the court's discretion. The rules on expert evidence are there to ensure a level playing field and to uphold the fair administration of justice. The court's permission is conditional on compliance with these rules, and this decision highlights the fact that breaches will not be tolerated.
It also serves as a valuable reminder of the important role that parties' solicitors play in the provision of expert evidence. It is crucial that solicitors exercise appropriate oversight and control over experts, including by keeping clear records of all information provided to experts and all communications between the expert and the client.
For further information on this topic please contact Geraldine Elliott or Jodie Gittins at RPC by telephone (+44 20 3060 6000) or email ([email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.