EWHC 1763 (TCC)
During the course of the judgment, Mr Justice Fraser made a number of comments about the importance of witness and expert evidence at every stage of the litigation process not just at trial. He noted that: “It should go without saying that witness statements to the court should be factually accurate in any event. This is as important for those served for interlocutory applications.”
With witnesses of fact, care must be taken not to “ignore important aspects of the factual background” that do not match your case.
Parties should also take care not to remove potentially important evidence. Here there was reference in the evidence to ICI, at least initially, having kept hold of the allegedly defective welds. However, it was found in January 2017 that all the samples had been scrapped. Although non-destructive testing reports for some of the welds survived, the reports alone were not the same as enabling the experts to actually physically inspect the welds in question. Here, it was ICI’s case that the quality of the welding by MMT was below the necessary standard. The lack of physical evidence could not but adversely affect the strength of the case so advanced. The Judge noted that:
“Such destruction of physical evidence in any event, but particularly when the question of the quality of the welds is such a contentious issue between the parties, should not have occurred and I am greatly troubled by it.”
As for expert reports, care must be taken when experts add qualifications to a joint report. Here this happened when two of the experts added paragraphs to the already agreed joint statement on the day it was signed. However, their opposite number did not have any opportunity for discussion or review. The Judge noted that this was not an appropriate way of attempting to bolster, or add to, the written evidence after that written evidence had already been exchanged. This was “not the function of a joint statement by experts”.
Experts should also take care not simply to accept one party’s case. There was another issue over the total number of weld reports prepared by a testing company. There were around 1,800 in total, but the expert was only provided with 412. This meant the expert was using a sample far smaller than the one available in disclosure. The expert asked for the complete sample, but was not provided with it. Whilst the Judge was critical of the failure to provide all the reports, he was equally critical of the expert who “glossed over this absence of data, even though he knew it existed and had specifically requested that it be provided”. This was not the action of an impartial independent expert.
Further, the expert attempted to maintain his original conclusion, based on the smaller survey. This led the Judge to conclude that the expert in question had lost that degree of independence and impartiality expected of all experts. Here the expert became a “cheerleader” for the party that was instructing him. An expert must have regard to the case being put forward by the other side. Where there are matters for a court to resolve, the expert should identify this in their report. The Judge noted that:
“An expert’s role is not to decide issues of fact themselves, and choose what facts to believe and what not to believe.”