DBE Energy Ltd v Biogas Products Ltd

[2020] EWHC 1232 (TCC)

This was a claim concerning the alleged breach of contract and/or negligence of Biogas in relation to the design, manufacture and supply of components required by DBE for incorporation into its newly built anaerobic digestion facility. Questions were raised over the impartiality of certain of the experts. The Judge referred to the observations of Mr Justice Fraser in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd (No. 2) [2018] EWHC 1577 (TCC) that:

“it is not the place of an independent expert to identify which version of the facts they prefer. That is a matter for the court”. 

Here one of the experts tried to introduce inadmissible material into his expert report which was removed by Order of the court at the Pre-Trial Review. This issue was magnified by the expert’s failure to take what was described as the “clear direction” from the court at the PTR as further inadmissible material was included  in the Technical Joint Statement. This had to be subsequently removed by agreement between the parties on the second day of trial. Further, various parts of the report: “exhibited a tendency to advocate in favour of Biogas’ case”. It appeared that the expert had simply adopted Biogas’ factual case without acknowledging the existence of an alternative factual position on the part of DBE. An easy mistake to make perhaps, but one which suggested to the Judge that the expert did not take proper care in his report to set out the background facts in an impartial way. This resulted in the expression of views which appeared to the Judge to be biased in favour of Biogas. Finally, the expert was, on occasion, inclined in his report to make factual findings which were matters for determination by the court.

Another expert sought to rely on material that was not available to the other side’s expert, making reference to information she had received that was not in witness statements or documents before the court. Where the other expert did not have access to that information and it was not in evidence, that part of the expert’s evidence was disregarded.

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