Thursday, 6 October 2022

Pickett v Balkind

[2022] EWHC 2226 (TCC)  

This was a case about alleged damage caused by tree roots. A week before the experts’ final reports were due, Pickett’s solicitors said that the structural engineering expert would not be available to give evidence at the trial, as they would be undergoing surgery, and requested consent to an adjournment. 

The draft adjournment application referred to a letter from the expert to the solicitors which was to be exhibited to the final statement. In that letter, the expert explained that they had gone through Counsel’s comments and referred to “suggestions/requests” made about the draft joint statement and noted that they had made “just a couple of minor changes”. The expert also attached a word copy of the document for “comment.” 

The final application also included this letter. Balkind’s solicitors replied promptly expressing concern that there had been a breach of paragraph 13.6.3 of the TCC Guide, which states:

“Whilst the parties’ legal advisors may assist in identifying issues which the statement should address, those legal advisors must not be involved in either negotiating or drafting the experts’ joint statement. Legal advisors 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 solicitors referred to the case of BDW Trading Ltd v Integral Geotechnique (Wales) Ltd [2018] EWHC 1915 (TCC) where HHJ Stephen Davies said:

“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...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...”

Pickett’s solicitors said that the letter had been provided in unredacted form by mistake, asserted that it was privileged and sought an injunction preventing further use of the letter. The Judge held that Pickett’s solicitor made an error in sending the letter unredacted, but that Balkind’s lawyer did not realise this and, indeed, the error was not obvious. It was also the case that the first part of the letter revealed a potentially serious breach of the TCC Guide, which was raised immediately, but to which there was no satisfactory response. The Judge considered that it would: “promote a sense of injustice in the defendant to leave that concern hanging, unanswered.”  It would not, therefore, be right to grant an injunction restraining the use of the information in the letter.

The letter from the expert was exhibited in order to seek an adjournment of the trial. The claimant could have merely “referred” to the letter, but instead “deployed its contents.” HHJ Matthews, therefore, considered that there had been a waiver of privilege which confirmed that it would not be right to grant the injunction sought. 

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