I liked the classics at school and did rather well in them. When I last wrote about ICI v MMT, I referred to Hercules and Hydra. This time, I’m delving further into Greek mythology, with reference to Scylla and Charybdis, which is used in the context of the idiom “being between Scylla and Charybdis”. It means “having to choose between two evils” and is a bit like more well-known idioms such as “between the devil and the deep blue sea” and “between a rock and a hard place”.
It came to mind when I was reviewing some of Fraser J’s comments about the expert evidence in ICI v MMT.
Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd
By now, you should be familiar with this dispute. This is my third post on the quantum judgment and you can also read Simon Thompson’s thoughts on the parties (and the court’s) approach to valuation.
Therefore, I probably don’t need to tell you that the parties’ dispute followed works at ICI’s new paint processing plant in Ashington, Northumberland, or that last summer, Fraser J decided that the employer (ICI) was in repudiatory breach of the contract when it dismissed the contractor (MMT) from the site alleging widespread defects in its work. This year, he determined that a balance of over £2.1 million is due to the contractor on its claim and counter-claim.
As part of the quantum judgment, Fraser J considered the parties’ expert evidence, given by two quantity surveyors (Mr Kitt and Mr Linnett) and two accountants (Mr Thompson and Mrs Baker). It is fair to say that ICI’s experts did not fare well. However, I do not propose to go through each and every example of where their expert evidence was criticised. Suffice to say that Fraser J found that ICI’s experts failed to comply with their duty to the court and failed to adopt an independent position. Both were described as dealing with issues in a partisan way.
Such was Fraser J’s ire, that he felt the need to comment on the “preponderance of partisan experts, all called by the same party”. Not only did he refer to ICI in the case before him, but he looked back to Coulson J’s judgment in Bank of Ireland and another v Watts Group plc.
This was a case from last summer, and one that Jonathan looked at in his rather aptly titled post, When two judges go to war (on experts). In that case, Coulson J had referred to the Bank’s expert as “unreliable”, “not properly independent” and “unreasonable”. For the Bank’s expert, it was like, “The Ikarian Reefer was a ship that passed in the night”.
It is such a great quote and one that Fraser J reminded us of in ICI v MMT before referring to the duties of an independent expert, as set out in that case and in CPR 35, PD 35 and the Guidance for the instruction of experts in civil claims. (It almost feels like he’s been reading this blog, as I only discussed the Ikarain Reefer at the beginning of June!)
Fraser J then went on to set out a number of principles that he felt ought to be borne in mind by all experts and legal advisers in future cases. He said these “do not dilute, or change, the approach in The Ikarian Reefer“, but are examples of the application of those principles in practice. They may be based on things that actually happened in the ICI case, but I think it is worth setting them out in full:
“1. Experts of like discipline should have access to the same material. No party should provide its own independent expert with material which is not made available to his or her opposite number.
2. Where there is an issue, or are issues, of fact which are relevant to the opinion of an independent expert on any particular matter upon which they will be giving their opinion, it is not the place of an independent expert to identify which version of the facts they prefer. That is a matter for the court.
3. Experts should not take a partisan stance on interlocutory applications to the court by a particular party (almost invariably the party who has instructed them). This is not to say that a party cannot apply for disclosure of documents which its expert has said he or she requires. However, the CPR provides a comprehensive code and it may be that disclosure is not ordered for reasons of disproportionality. However, if documents are considered to be necessary, and they are not available (for whatever reason), then an opinion in a report can be qualified to that extent.
4. The process of experts meeting under CPR Part 35.12, discussing the case and producing an agreement (where possible) is an important one. It is meant to be a constructive and co-operative process. It is governed by the CPR, which means that the Overriding Objective should be considered to apply. This requires the parties (and their experts) to save expense and deal with the case in a proportionate way.
5. Where late material emerges close to a trial, and if any expert considers that is going to lead to further analysis, consideration or testing, notice of this should be given to that expert’s opposite number as soon as possible. Save in exceptional circumstances where it is unavoidable, no expert should produce a further report actually during a trial that takes the opposing party completely by surprise.
6. No expert should allow the necessary adherence to the principles in The Ikarian Reefer to be loosened.”
What do I take from this?
While acting in these roles may be attractive, I have always thought that the court provides a supervisory role with regard to perceived poor practice or complacency, whether that is by the parties, their advisers, experts, adjudicators, arbitrators or even other judges. It means we are all accountable and run the risk of a judicial (and very public) dressing down if we stray from the path.
The TCC has “gone to war”
It feels like the TCC has “gone to war” (to borrow from Jonathan) and wants to end what it sees as a “worrying trend” in expert evidence.
Interestingly, I think this was demonstrated more recently by Jefford J in Castle Trustee Ltd v Bombay Palace Restaurant Ltd. While she wasn’t faced with partisan experts, she was confronted with what she described as a case where:
“… the expert evidence was even more remarkable and, in many respects, unsatisfactory.”
This followed her criticism of the parties’ factual witnesses, where she thought neither was satisfactory:
“Both may have been tempted to reconstruct what had happened, putting the best gloss on the documents available to them. But, in my view, they both went far further than that. They were both too inclined to act as advocates not witnesses and to purport to give evidence about what others had said or done or meant which they were not in a position to give evidence about. On occasion they both showed themselves unwilling or unable to give a simple answer to a straightforward question.”
We have all been warned.