When I first started writing about experts, I wasn’t aware of how frequently the topic pops up in judgments, or the sort of issues that arise. Now it seems hardly a week goes by without a judge commenting on an expert’s good, or more often, bad behaviour or whether there is a need for an expert in a particular case.
We are all familiar with the fact that construction litigation (big or small) relies heavily on experts. While few of the cases I’ve been reading recently actually concerned construction disputes, the underlying principles affect us all. Therefore, I was interested to see a Chancery judge’s guidance in British Airways plc v Spencer and others on the principles for deciding whether expert evidence is necessary.
British Airways plc v Spencer and others
This is a dispute about proposed pension increases, which the trustees of BA’s pension scheme wish to introduce for the benefit of BA’s pensioners. BA says the increases are likely to have very significant financial implications and it started proceedings. It rejects them for a variety of reasons, including that the trustees exercised their discretion for an improper purpose. It’s a case that is about as far from construction law as you can get.
At a case-management hearing, a deputy master refused BA leave to call or rely on expert evidence. He held that the various points raised in the pleadings on which BA suggested expert actuarial evidence would assist were, in fact:
“…eminently capable of being determined by the Judge at trial as issues of fact and law without the assistance of expert evidence.”
Understandably, BA appealed.
Pausing there, it is my understanding that by the time of the case management hearing (the CMC) in the TCC in your average construction dispute, one or both parties will have already instructed an expert. Therefore, often the issue before the court is not whether expert evidence is required, but rather which issues it is needed on and what discipline(s) the expert(s) should come from. After all, construction disputes often involve multiple issues, such as the need for someone to look at the alleged defects in the works or the alleged delay to the completion of the works and the contractor’s claim for an extension of time, and for someone to do the maths.
Even in adjudication, expert evidence is commonplace, particularly in the larger disputes.
The relevant law
Back to BA’s appeal judgment.
Warren J looked at the pleaded issues and considered the various grounds of appeal in detail. Suffice to say, he found the deputy master was wrong to refuse to allow BA to rely on expert actuarial evidence. He concluded that there were areas where such evidence would assist the court, and some areas where it was necessary. In reaching this conclusion, the judgment not only sets out the relevant law, but it also contains a number of statements that are worth repeating.
First the law.
Warren J explained that the starting point is CPR 35.1, which requires expert evidence to be restricted to what is “reasonably required to resolve the proceedings”. Paragraph 35.1.1 of the White Book notes that the underlying objective is to reduce the inappropriate use of expert evidence to “bolster cases”.
As someone who also acts as an expert, I must confess to being more familiar with the guidance for experts, including that from the RICS, rather than the inner workings of CPR 35 and the White Book, even though such guidance is intended to be consistent with and reflect both.
Warren J also referred to the judgment in J P Morgan v Springwell, where the court looked at the dangers, particularly in large commercial cases, of submerging judges in expert evidence on matters that extend significantly beyond the points in issue:
“There is a natural tendency of parties and their advisors to consider employing experts to assist in digesting this material… There is a tendency to think that a judge will be assisted by expert evidence in any area of fact that appears to be outside the “normal” experience of a Commercial Court judge… Production of such expert reports is expensive, time-consuming and may ultimately be counter-productive. That is precisely why CPR Pt 35.1 exists… it is the duty of the court… to reject firmly all expert evidence that is not reasonably required to resolve the proceedings.”
I don’t really recall a TCC judge complaining about experts reports in quite this way, although I’m sure it has happened.
Admissibility of evidence
Warren J noted that a judgement needs to be made in every case about the admissibility of expert evidence in relation to the pleaded issues. He identified three questions that the court should consider when making that judgment. In some respects, I thought these three questions may assist an expert when he is writing his report too, they are factors to bear in mind at least in deciding what to pass your opinion on:
“(a) The first question is whether, looking at each issue, it is necessary for there to be expert evidence before that issue can be resolved. If it is necessary, rather than merely helpful, it seems to me that it must be admitted.
(b) If the evidence is not necessary, the second question is whether it would be of assistance to the court in resolving that issue. If it would be of assistance, but not necessary, then the court would be able to determine the issue without it …
(c) Since, under the scenario in (b) above, the court will be able to resolve the issue without the evidence, the third question is whether, in the context of the proceedings as a whole, expert evidence on that issue is reasonably required to resolve the proceedings. In that case, the sort of questions I have identified in paragraph 63* above will fall to be taken into account. In addition, in the present case, there is the complication that a particular piece of expert evidence may go to more than one pleaded issue, or evidence necessary for one issue may need only slight expansion to cover another issue where it would be of assistance but not necessary.”
(*Those additional factors are the value of the claim, the effect of the judgment on the parties, who is paying for the expert evidence and any delay that producing expert evidence will cause to the resolution of the dispute.)
Food for thought indeed.
Thought-provoking article. An additional question is perhaps whether the parties themselves are able to digest the information. The examples given for quantum and delay analysis are essentially about digesting factual evidence. However, the scale and complexity of the task means that a developer party will inevitably need to hire an expert to do the analysis in a forensically robust manner. Given this, it is a no-brainer to appoint them as an expert so that the conclusions have the added weight of expertise and independence – allowing the conclusions themselves to form part of the evidential matrix rather than part of the pleadings.
In any event, in adjudication it is up to the parties really. As party costs are not an issue in adjudication the key public policy reason of controlling costs falls away.