Essex County Council v UBB Waste (Essex) Ltd

[2020] EWHC 1581 (TCC)

This was also another case where questions were raised over the independence of one of the experts. The issues included that:

• The expert’s firm played a “substantial role” on the project over an extended period of time during which the firm billed “many hundreds of thousands of pounds” This was held by Mr Justice Pepperall to be itself a conflict of interest.
• The expert failed properly to differentiate between the provision of consultancy services to a client and the provision of independent expert evidence. This was described by the judge as a failure to “appreciate the difficulty in both devising UBB’s strategy and then offering expert opinion evidence upon such strategy.
• Whilst the expert was correct to conclude that it would have been inappropriate to have acted as an expert while his firm was subject to an actual claim in respect of their consultancy work on the project, the expert ought also to have identified that UBB’s agreement that there was no current claim did not resolve the problem. There appeared to be an express linkage between UBB’s agreement that there was no current claim and the expert’s willingness to give expert evidence supportive of UBB. This could only raise questions about the expert’s independence, impartiality and objectivity.
• The remaining possibility of a claim meant that it was in the expert’s interest, as a significant shareholder in the company, to defeat the claims against UBB.

The result was that the Judge treated the expert’s evidence with caution, expressing further concern that the expert had failed properly to distinguish between advocacy for a client and the rigour required when acting as an independent expert.

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