Wednesday, 12 June 2024

Glover & Anor v Fluid Structural Engineers & Technical Designers Ltd & Ors

[2024] EWHC 1257 (TCC) 

We have discussed this case before, see Dispatch, Issue 283. The main dispute related to damage to neighbouring properties following renovation works, including the creation of a new basement. The parties were given permission to call structural engineering and quantum expert evidence.
During the finalisation of the joint statement of the structural engineering experts, AXA’s expert expressed concern that there appeared to have been involvement from the Glovers’ lawyers which resulted in “significant changes” to the experts’ views. Following correspondence between the parties’ solicitors about the issue, the claimants’ solicitors conceded that their conduct was not fully in compliance with the applicable rules and/or guidance. 

AXA said that the claimants should prepare an application seeking permission to change their expert, which must include provision of disclosure of the instructions to the first expert, including in relation to the joint statement and the proposed changes to the draft statement. The claimants’ application did include drafts of the changes made to the joint statement. The judge drew attention to an email from the claimants’ solicitors which included: 

“Please see attached our amends to the joint statement. I accepted […] previous changes and made our amends in track (but I have removed the metadata so it doesn't show PMC made the amends).

You will see the amends are with the intention of staying faithful to the pleaded issues rather than the plethora of objections raised by […] which are more appropriate for the comment boxes. 

We would be grateful if you could review and confirm if you agree with the changes and where you wish to make further changes to the statements and your comments, to make these.”

The judge referred to the applicable principles to joint statements to be found at paragraph 13.6.3 of the TCC Guide: 

“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 concerns should be raised with all experts involved in the joint statement.”

The judge noted that what was clear from the correspondence was that the claimants’ solicitors believed it was permissible to amend the draft statement where it was thought the content did not reflect the pleaded issues and said the same to AXA’s lawyers:

“Such a belief, however misguided, is not the same as a deliberate and knowing disregard of the applicable principles.”

The real difference between the parties was the circumstances in which permission should be given for a replacement expert and the conditions to be attached to any such permission. When considering what to do, the judge did so on the basis that the facts disclosed “substantial and impermissible interference in the expert statement process” which was  contrary to both authority and the applicable guidance issued by the TCC.

The judge also had regard to the overriding objective of enabling the court to deal with cases justly and at a proportionate cost. Justice was best served by maintaining the trial date if at all possible and ensuring that AXA had sufficient disclosure to understand the original expert’s views. As a result, if the consequence of a replacement structural engineering expert had been to lose the trial date, then for that reason alone, the judge would not have granted permission. 

The judge did decide to give permission for the replacement expert. The reasons included that:

  • It was not disputed that structural engineering evidence was central to the issues in this case. Without it, the claimants would likely be at a very significant and possibly insurmountable disadvantage.
  • The expert evidence could be timetabled in a way which preserved the trial date and did not cause unfairness to AXA. 
  • The limited evidence available did not support a conclusion that there was an attempt to change the opinion of the first expert on the central issues in dispute. This was not a case of “expert shopping”.
  • The conduct complained about was not that of the claimants but their solicitors, and there had been a full and frank admission and an apology to the court and AXA.

The decision to change the expert was made to provide a fair and swift resolution of any concerns of non-compliance and the independence of the expert. Further, the extent of disclosure given, in addition to the first expert’s report, met the concern to ensure that full information is available to AXA. 

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