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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Andrews & Ors v Kronospan Ltd [2022] EWHC 479 (QB) (07 March 2022) URL: https://www.bailii.org/ew/cases/EWHC/QB/2022/479.html Cite as: 201 Con LR 1, [2022] EWHC 479 (QB) |
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QUEEN'S BENCH DIVISION
IN THE CHIRK NUISANCE GROUP LITIGATION
Strand, London, WC2A 2LL |
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B e f o r e :
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Patricia Andrews and Ors |
Claimant |
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- and - |
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Defendant |
____________________
Michael Kent QC and Michael Jones (instructed by Clyde & Co Claims LLP) for the Defendant
Hearing dates: 19 February 2022
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Crown Copyright ©
Senior Master Fontaine :
Procedural background and chronology
i) The first CMC was held on 15 May 2018, where permission was given for each party to rely upon the evidence of an expert in dust dispersion modelling ("dust modelling"), with consideration of other potential areas for expert evidence adjourned [1/168].
ii) Further directions were made in relation to dust modelling expert evidence in the order of 3 July 2018 [1/173].
iii) The order dated 7 December 2018 gave permission for each party to have expert evidence in a further discipline, dust analysis and monitoring ("dust analysis") [1/177-178]. Dr Nigel Gibson was the Claimant's expert in both disciplines, Dr Hugh Datson was the Defendant's expert in dust analysis and Dr Carruthers its expert in dust modelling.
iv) The order of 25 March 2019 gave detailed directions in both areas of expertise in relation to joint discussions [1/180-181].
v) The order of 22 July 2019 provided detailed directions with regard to data collection and monitoring, and permitted both parties to jointly instruct an expert laboratory to provide the initial chemical and scanning electro microscopy ("SEM") analysis of the data collected and specified the samples for analysis [1/187, 189].
vi) In the order of 23 April 2020 the Claimants were given permission to rely on a written report on the characterisation of dust from that analysis from Dr Laura Aguilano, to deal with certain aspects of the joint expert report that Dr Gibson said did not fall within his area of expertise [1/208].
vii) Further directions for exchange of reports, joint discussions and joint statements were given in the order of 21 October 2020 [1/212].
viii) The dates for these steps were then extended by a consent order of 4 March 2021 [1/219].
ix) By order of 19 October 2021 permission was given to Dr Gibson to rely on an addendum report dated 5 July 2021, arising out of an issue following receipt of Dr Datson's report [1/227]. The order also reflects that there was disagreement between the parties as to how that part of the expert evidence to be dealt with by Dr Aguilano for the Claimants was to be carried out, and I resolved that issue by providing that Dr Aguilano and Dr Datson should sign a separate joint statement in respect of the area of expertise where Dr Gibson deferred to Dr Aguilano, by 16 November 2021. The joint statement of Dr Aguilano and Dr Datson was produced on time on that date: Mullins 7 para. 5 [1/8]. The date for production of the joint statements of Dr Gibson and Dr Datson was put back again to 30 November 2021 [1/227].
Issues arising in the expert evidence during the period since 2018
"In order to ensure that the parties experts are reporting on the same basis, the experts are to continue discussions to agree between them, and identify areas where they have not agreed, their approach, and they are to prepare and file with the court a document in respect of each report as set out below."
The background to the application
i) it was inappropriate for the Claimants' solicitors to have provided comment solely to Dr Gibson, and that Dr Gibson should not have responded to those comments;
ii) it is wrong for an expert to solicit input from their instructing solicitors during the process of drawing up a joint statement, just as it is wrong for those solicitors to provide that input;
iii) there was a serious transgression of the rules by the Claimants, by reference to the terminology in the case of BDW Trading Ltd v Integral Geotechnique (Wales) Ltd [2018] EWHC 1915(TCC);
iv) the court has power to revoke permission to rely on an expert.
The issue between the parties on the application
Discussion
"(1) it is the duty of experts to help the Court on matters within their expertise.
(2) this duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid. "
CPR 35.12 (1) to (3) gives the court power to direct a discussion between experts and to direct a statement following that discussion, and rule 35.12 (4) states:
"The content of the discussion between the experts shall not be referred to at the trial unless the parties agree."
CPR 35PD.9 governs discussions between experts.
Paragraph 9.4:
"Unless ordered by the court or agreed by all parties, and the experts, neither the parties nor their legal representatives may attend experts' discussions." And
Paragraph 9.7;
"Experts must give their own opinions to assist the court and do not require the authority of the parties to sign a joint statement."
The Civil Justice Council Guidance for the Instructions of Experts in Civil Claims 2014, ("the CJC Guidance") at paragraph 91 reminds solicitors and experts of the court's powers to impose sanctions under CPR 35.4(4) and 44: White Book Vol 1 35EG.23. One of the possible penalties is stated at paragraph 91b to be that "an expert's report/evidence be inadmissible".
"… it is important that all experts and all legal advisers should understand what is and what is not permissible as regards the preparation of joint statements. To be clear, it appears to me that the TCC Guide envisages that an expert may if necessary provide a copy of the draft joint statement to the solicitors, otherwise it would not be possible for them to intervene in the exceptional circumstances identified. However, the expert should not ask the solicitors for their general comments or suggestions on the content of the draft joint statement and the solicitors should not make any comments or suggestions save to both experts in the very limited circumstances identified in the TCC Guide. That is consistent with the fact that any agreement between experts does not bind the parties unless they expressly agree to be so bound (see Part 35.12 (5)). There may be cases, which should be exceptional, where a party or its legal representatives are concerned, having seen the statement, that the experts' views as stated in the joint statement may have been infected by some material misunderstanding of law or fact. If so, then there is no reason in my view why that should not be drawn to the attention of the experts so that they may have the opportunity to consider the point before trial. That however will be done in the open so that everyone, including the trial judge if the case proceeds to trial, can see what has happened and, if appropriate, firmly discourage any attempt by a party dissatisfied with the content of the joint statement to seek to reopen the discussion by this means."
"Whilst the parties' legal advisers may assist in identifying issues which the statement should address, those legal advisers must not be involved in either negotiating or drafting the experts' joint statement. Legal advisers should only invite the experts to consider amending any draft joint statement in exceptional circumstances where there are serious concerns that the court may misunderstand or be misled by the terms of that joint statement. Any such concern should be raised with all experts involved in the joint statement."
"While this guidance concerned the application of the approach set out in the Technology and Construction Court Guide, it is of general utility and applicability."
"66.… I should reiterate what was said by Fraser J in Imperial Chemical Industries Ltd v Merit Merrill Technology Ltd [2018] EWHC 1577 at [237];
"The principles that govern expert evidence must be carefully adhered to, both by the experts themselves, and the legal advisers who instruct them. If experts are unaware of these principles, they must have them explain to them by their instructing solicitors. This applies regardless of the amounts in stake in any particular case, and is a foundation stone of expert evidence. There is a lengthy practice direction to CPR part 35, practice direction 35. Every expert should read it."
67. Fraser J went on to set out some examples of the application of the well known principles in The Ikarian Reefer [1993] 2 Lloyds LR 68…. For present purposes, I note the first duty of an expert witness in a civil case as identified by Creswell J (at page 81) in The Ikarian Reefer:
"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 (Whitehouse v Jordan [1981] 1 WLR 246 at 256, per Lord Wilberforce) ""
i) The attendance note of the telephone conversation on 26 May 2021 discusses the substance of the report and Dr Gibson relays Dr Datson's views on particular issues, and the conversation ends with "SE said she will check the document he sent through and she and RA will return with any comments/aspects ready for him to send back to HD." [1/54]
ii) An email of the same date from Dr Gibson to Dr Datson, enclosing "an outline of what we discussed" was apparently blind copied to the Claimants' solicitors. Ms Eedy's reply on 1 June 2021 says:
"Following our discussions, we have reviewed the draft note you sent through as I understand you wanted to ensure that it captures the points relevant for cross examination. I attach your note onto which we have inserted comments.
Your draft seems to cover most things but some further observations are set out below:
1. Complaints: we recall that you are intending to make the points regarding HD's reference to "event"/"non-events"
2. Complaints: to substantiate your point on the complaint numbers it is possibly worth making references to residents reasons for not complaining? – e.g. review of the lead claimants' witness statements illustrate some of these reasons: residents don't always know who to complain to [e.g. names of 4 claimants] They give up/don't consider any improvement will result [e.g. names of 6 claimants] and that they don't complain every time/have no time [e.g. names of 4 claimants].
3. Provide comment/evidence to tackle HD's comments on 0.1% particles being linked to K – unpick the 5 points HD summarises in reaching this conclusion? " [1/55-56].
iii) On 3 June 2021 Dr Gibson sent an email to the Claimants' solicitors apparently attaching a further draft of the joint statement which stated "This came through from HD the other day. There are some comments on the way that Lorna has done her assessment. Could she have a look at what HD has said so I can respond." The reference to "Lorna" is to Dr Aguilano, so it appears that Dr Gibson is seeking Dr Aguilano's assistance in relation to his part of the joint discussions. Ms Andrews from the Claimant's solicitors responded confirming should that she "will forward to Lorna for her comments on HD comments pages 12 and 13." She then states:
"Presumably this document will be updated again following your discussion today, so I haven't considered HD's comments at length save to note the following:
1. Need to address his statement that there is no direct correspondence between location of complaint and of claimant
2. Dust criteria/thresholds section, is this missing the point that the vallack and shilto [sic: Vallack and Shillito] data is also out of date, air quality has improved since then….
3. Need to respond to what he says in the dust monitoring section" [1/57]
iv) On 4 June 2021 Dr Gibson sent an email to the Claimant's solicitors, headed 'draft joint statement note' which states: "HD sent me an amended format for the report along with additional commentary. I have been now been through the headings and have drafted my response. Perhaps you would like to comment draft before I send it back to HD." Ms Andrews of the Claimant's solicitors sent a note back with her comments and comments from "Brian Anderson" (which was intended to refer to Brian Donovan from Ricardo Consulting, Dr Gibson's colleague) [1/59-60].
i) Dr Gibson having sent the first draft of the joint statement to the Claimants' solicitors unsolicited, which could only be because he sought their views. He sent further drafts to them where he sought their input.
ii) Dr Gibson's view that it was appropriate to attempt to include in the joint statement the evidence note that he had prepared for a conference with Counsel: Eedy 12 paras. 17, 26.2, 27 [1/ 242, 246, 247]; HKM17 [1/13-19] when this was clearly inappropriate and further had not been discussed with Dr Datson.
iii) Dr Gibson providing information to the Claimants' solicitors about the joint discussions without at any time informing Dr Datson of this. Even if he was unaware of his duties in this regard (and he has not informed the court whether this was the case) it is not a transparent approach and contrary to the overriding objective.
iv) Dr Gibson's comments to the Claimants' solicitors referred to in the examples above, which make it clear that he was looking for ways in which he could support the Claimants' case.
i) The Claimants' solicitors failure in November 2021 to reveal the full extent of their communications with Dr Gibson, the correspondence suggesting that the first contact had been on 17 November 2021, and their reluctance to do so until the persistence of the Defendant's solicitors made it apparent that they would not let the issue go.
ii) The Claimants' solicitors informed the Defendant's solicitors that the only reason for that contact by Dr Gibson on 17 November was "to notify us that Dr Gibson/Dr Datson's communications regarding their joint statement were being resumed" which was clearly only part of the picture. It is apparent, having seen Dr Gibson's email of 18 November 2021 sending the next version of the draft joint statement [1/66] and the telephone attendance notes of 17 and 18 November 2021 [1/65, 67], that Dr Gibson was intending to resume his previous conduct in providing information about the joint discussions and soliciting assistance from the Claimant's solicitors. I therefore do not consider that Ms Eedy's explanation as to why there was no disclosure of the previous discussions with Dr Gibson in May and June 2021 is satisfactory: Eedy 12 para. 14 [1/242].
iii) Dr Gibson has not informed the court of the reason for his conduct, i.e. whether he was unaware of his obligations as an expert, and if so, why, or whether he was aware, in which case his reasons why he thought it appropriate to transgress those obligations.
iv) Dr Gibson produced his addendum report in July 2021 at a time when Dr Datson was unaware of his prior discussions with the Claimants' solicitors.
i) Dr Gibson has been involved for over 3 years, and I am informed that some £255,000 have been spent on his fees.
ii) If permission to rely on Dr Gibson is revoked that would be a severe blow to the Claimants, a total of 159 households, all likely to be of modest means, who will be adversely affected by a decision to revoke permission.
iii) Even if the Claimants are permitted to rely on alternative expert evidence it will involve them in considerable additional costs and cause further delay to an already long running case.
iv) The Defendant is now aware of the extent of the discussions with Dr Gibson, so that the Defendant can cross examine Dr Gibson at trial in relation to whether he has changed his opinion as a result of those communications.
Conclusion
"Joint statements should aid the understanding of the key issues and each expert's position on those issues. It should set out the issues on which they agree, and on which they disagree….They should be concise and both parties and experts should ensure that they do not take on the quality of a "long and repetitive pleading"….
An effective joint statement is best achieved by parties agreeing a single agenda for the experts' discussion, see Saunders v Central Manchester University Hospitals NHS Foundation Trust [2018] EWHC 343 (QB);"