I identified an increased awareness by experts of their duties and obligations as one of the items in my 2014 “wish list“. I did this because of the sheer number of recent cases where the court was critical of the experts and their evidence. For example, last year I commented on:
- HHJ Mackie QC’s judgment in Proton Energy Group v Orlen Lietuva.
- Akenhead J’s judgment in National Museums and Galleries on Merseyside v AEW and PIHL/Galliford Try.
- Peter Smith J’s judgment in Mengiste v Endowment Fund for the Rehabilitation of Tigray and others.
- Akenhead J’s judgment in Igloo Regeneration v Powell Williams Partnership.
In the first TCC case to be published in 2014, the experts’ evidence was under scrutiny once again.
Pickard Finlason Partnership Ltd v Mr and Mrs Lock
Pickard Finlason Partnership Ltd v Mr and Mrs Lock is a case all about professional fees. The fees related to the redevelopment of Butley Hall in Cheshire, which Mr and Mrs Lock owned. PFP was employed to provide professional services relating to the design and construction of the development. According to the judgment, it agreed “bespoke and… complex terms as to payment”, payable in four stages, including 40% of the total fee when planning permission was obtained and the development costs were established.
As is often the case in the construction world, things did not go smoothly. The development was redesigned to allow for planning objections and then, by the time planning permission was granted in March 2009, the Locks’ funding had been withdrawn. The relationship between PFP and the Locks broke down. The Locks believed PFP had provided a “revised scheme [that] was fatally flawed” and had “failed to give them proper advice… about the risks and costs of the revised scheme”. The Locks did not pay PFP’s invoice for £181,979, being the balance of the 40%, which it considered was due when planning permission was granted.
In 2010, PFP pursued its outstanding invoice in adjudication, and was unsuccessful. Undaunted by that, PFP decided to pursue its claim in the courts. After a ten-day trial in November 2013 before HHJ Stephen Davies, PFP was, once again, unsuccessful. Amongst other things, it was found to be in repudiatory breach of contract because it refused to do what the court held it was obliged to do.
As the judge noted, the parties were:
“unable or unwilling to settle their differences and have instead expended such substantial amounts of time, money and, I am sure, stress and anxiety in the pursuit and defence of their respective claims.”
The expert evidence
The parties each called four experts: an engineer, a quantity surveyor, an architect and a valuer. As a multi-disciplinary partnership, PFP was being assessed not only on the standards of a reasonably competent architect, but also on the standards of a reasonably competent structural engineer. The quantity surveyors were necessary to determine the costs of the development, the valuers to assess whether the development was financially feasible.
The court described both engineers as “genuinely independent and fair minded”, although “both had on occasion taken on the mantle of advocate for their respective clients”. However, as the experts had accepted this criticism as valid in cross-examination, the court said that this did not detract from its overall conclusions about the engineering evidence. The quantity surveyors were also described as “well qualified, knowledgeable, fair-minded and impressive expert witnesses”. Both sets of experts had produced helpful joint statements. The court said nothing untoward about any of them.
However, the court was less enthusiastic about the architectural evidence, with both experts “guilty of descending into the arena and arguing the case for their respective clients from a very early stage”. The court also highlighted that both experts’ experience was somewhat historic, as both had acted more as “experts” than “architects” for 20 years or so. That said, the court preferred the Locks’ architect expert, whom it described as “fairly impressive”, despite his lack of experience of listed buildings. Very little was said about the valuation experts.
A mixed bag?
As I’ve said before, it is difficult being an expert. You need to understand the requirements of CPR Part 35, its practice direction (PD 35) and the experts’ protocol, as well as being familiar with the requirements of your professional body. Those instructing you should also make sure you stick to the expert’s path, ensuring that you do not stray into the realms of partisan evidence.
The court expressed more positive than negative views on the parties’ experts in PFP v Mr and Mrs Lock. Perhaps this suggests that more and more experts are finally getting the message.