REUTERS | Heinz-Peter Bader

Expert behaviour and joint statements in the spotlight

A few weeks ago, I looked at what Coulson J had to say about experts in Bank of Ireland v Watts. This time, I’m turning my attention to Fraser J’s judgment in Imperial Chemical Industries Ltd (ICI) v Merit Merrell Technology Ltd (MMT).

You may recall that Matt has already looked at some of the payment issues that came out of this judgment and I’m looking at the expert evidence, which was called by the parties to deal with the alleged defects in MMT’s works.

ICI v MMT

In 2012, MMT entered into an amended NEC3 ECC with ICI to carry out works at ICI’s new paint processing plant in Ashington, Northumberland. The initial contract sum was just under £2 million but extra works were instructed, which MMT valued in excess of £23 million.

During 2014, a dispute arose over the quality of MMT’s welding and the value of its works. In October 2014, ICI stopped making payments. The independent project manager resigned and ICI then appointed its parent company’s employee, Mr Boerboom, as the project manager.

In February 2015, ICI alleged that widespread defects in MMT’s welding amounted to a repudiatory breach of contract. It also alleged that MMT had committed further repudiatory breaches, including failing to provide project documentation and wrongfully removing documents. ICI’s letter accepted MMT’s repudiatory breach of contract and went on to state that MMT’s employment was terminated.

Before Fraser J

The parties agreed to proceed by way of a liability-only trial covering 16 agreed issues and sub-issues. When the matter came before Fraser J, he held that ICI was the one in repudiatory breach of contract (not MMT). He also made a number of other findings, including that:

  • So far as MMT’s welding work was defective (which Fraser J held was no more than 5% of the welding), the correct measure of damages was what it would have cost MMT to repair the defects, had it been permitted to remain on site.
  • The parties had agreed that MMT would undertake non-destructive testing (NDT) in the form of dye-penetration testing and not radiographic NDT, as ICI had been arguing.
  • MMT did not fail to hand-over or remove project documents.

The expert evidence

Each party called expert evidence to deal with the alleged defects, which was limited to welding and testing:

  • ICI called Mr Millwood on testing and Mr Consonni on welding defects.
  • MMT called just one expert, Mr Parry. This was possible because of the overlap between the issues.

Experts’ joint statement

Before looking at the experts’ evidence and how they approached their task, Fraser J felt it necessary to “make some observations” on the contents of the experts’ joint statement. I agree with him, and will do the same.

As we all know, expert evidence is dealt with in detail in CPR 35, PD 35 and the Guidance for the instruction of experts in civil claimsPD 35 tells us that:

  • Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.
  • Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.
  • Experts should consider all material facts, including those that might detract from their opinions.

Part of the experts’ role is to meet on a without prejudice basis and to produce a joint statement of matters agreed and not agreed, which is usually prepared before the exchange of experts’ reports. The TCC Guide reminds us that this is an important document, in part because it helps set the agenda of the trial by identifying the “real areas of dispute”.

Fraser J clearly disapproved of the way in which ICI’s experts approached their task. For example:

  • Mr Millwood and Mr Consonni added a number of paragraphs to the first joint statement on the day it was signed without Mr Parry having any opportunity to discuss or review those paragraphs:

    “Those paragraphs were therefore used by the two experts for ICI as a way of bolstering, or adding, to their written evidence, after that written evidence had been served in the usual way in their expert reports which were served earlier. That is not the function of a joint statement by experts.”

  • Mr Consonni accepted part of ICI’s case in the first joint statement and:

    “Doing so raises real questions about the quality of his evidence… whether or not ICI were justified in losing confidence in MMT is a question for the court, and not one upon which expert evidence is admissible. I informed the parties that I considered such evidence inadmissible…”

Fraser J went further and reminded us that:

“An experts’ joint statement should not be used for such statements, and an independent expert on technical issues should not be giving an opinion on such matters. Entries such as these in the Joint Statements gave the impression that the experts for ICI were anxious to bolster ICI’s case.”

That was all set out in the first six paragraphs of the judgment dealing with the expert evidence (paragraphs 60-65). Another 18 paragraphs were devoted to ICI’s evidence. In contrast, Mr Parry got only three paragraphs. In those remaining 18 paragraphs, it is quite clear that Fraser J considered that ICI’s experts were:

  • Advocating their client’s case:

    “An expert’s role is not to decide issues of fact themselves, and choose what facts to believe and what not to believe.”

  • Commenting on matters outside of their expertise:

    “Such an assertion by a welding expert… goes obviously well outside the scope of expert evidence in any event, given the issues in this case… it is unclear to me why an independent expert should feel the need to include such hypotheses in his written report.”

  • Failing to consider what the outcome might be if MMT’s case was correct:

    “… he accepted the case ICI was advancing at the time on the contract terms without troubling to consider what if the case on this issue by MMT turned out to be correct. Given this was an issue to be determined by the court, he should not have done so… These factors again undermine the quality of his expert evidence.”

The first and third points are quite clearly contrary to the guidance for experts (such as PD 35), but I think that the second point is not quite so simple. I say this because the distinction between exactly what is a matter of fact or law to be determined by the tribunal and what is a matter for expert opinion can sometimes be blurred. Take, for example, a QS giving expert evidence. The QS might have to comment on what a reasonably competent QS would consider certain clauses of a standard form of contract to mean in order to give his opinion, notwithstanding that the interpretation of those clauses is a matter to be determined by the tribunal. By doing so, has the QS strayed into areas outside the scope of expert opinion?

Because the lines can be blurred, that is why it is critical for:

  • Experts to be properly briefed, and provided with as many details as possible. It is also important that the questions that the expert is asked to answer are rigorously reviewed by the expert and those instructing the expert to ensure that both parties understand the matters the expert is to give an opinion on.
  • In the event that an expert is in doubt, they should raise queries with those instructing them. Where an expert is instructed to adopt a party’s position on a particular matter, for example regarding disputed facts, then the expert should state what his opinion would be if the other side’s contentions regarding these facts is correct.

 

MCMS Ltd Jonathan Cope

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