The reliance of clients on expert evidence is increasingly present in the early stages of disputes. Expert evidence plays an important role in decision making and is persuasive in alternative dispute resolution (ADR). Although ADR does not always resolve a dispute without resorting to litigation, solicitors should be aware of the ways they can handle expert evidence at the early stages of the dispute in order to mitigate issues arising at trial.

The recent judgment of Joanna Smith J in Dana UK Axle Ltd v Freudenberg FST GmbH [2021] EWHC 1413 (TCC) provided observations on the role of the solicitor in safeguarding expert evidence from being excluded at trial.

The claimant brought proceedings against the defendant following the alleged premature failure to pinion seals manufactured by the defendant and supplied to the claimant. On the seventh day of trial, the claimant was successful in its application to exclude the defendant’s expert evidence. This was due to the defendant’s failure to provide full details of all materials provided to each of the defendant’s experts. In particular, the defendants failed to disclose the factual information provided orally by the defendant to its experts and subsequently failed to list all documents and information with which the experts relied on. The court further observed that the defendant’s other breaches of CPR 35, PD 35 and related guidance would have been sufficient in themselves to justify refusing the defendant permission to rely on the relevant reports.

It is apparent from the commentary made by Joanna Smith J that solicitors play a role in ensuring that expert evidence is obtained on a level playing field. In addition, oversight by the solicitors is needed to control any free flow exchange of information between experts, instructing clients and in-house experts. The main points for solicitors to consider are listed below.

• Joanna Smith J observed that establishing a level playing field in cases involving experts required careful oversight and control on the part of the solicitors instructing those experts. This is especially relevant where cases involve experts from other jurisdictions who might not be familiar with the relevant rules.
• It is suggested that solicitors who are instructing an expert on behalf of their client should adopt a “gatekeeping” role to carefully supervise interactions between client and expert. Interactions which do not include the instructing solicitors immediately risk creating a lack of transparency as to what has been discussed and what information and documentation may have been provided by the client to the expert, especially where such interactions have gone unrecorded. Direct contact of this nature, without solicitor involvement, may also raise questions as to the client’s influence on the expert’s ultimate opinions and report and, consequently, as to the expert’s independence.
• CPR 35.9 should be kept in mind by the parties, their experts and solicitors (where one party has access to information which is not reasonably available to another party, the court may direct the party who has access to the information to prepare and file a document recording the information, and serve a copy on the other party).
• Joanna Smith J also observed that legal advisers should not be involved in the negotiating and drafting of joint statements. It was apparent in this case that the experts were relaying information from the joint meetings to the defendant’s employees and seeking input on responses.
• Separately, experts should also be focused on the need to ensure that information received by them has also been received by their opposite numbers.

With thanks to Millie Leonard who co-authored this article.

This article was first published by Construction Law on 7 July 2021 here. You can sign up to Construction Law's newsletters here.