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Articles | Mon 7th Jun, 2021
We’ve heard a lot about traffic lights this week, and about the travel industry’s dismay at the reshuffling of Portugal from the green to the amber list of destinations. And this in turn has of course caused us to turn our minds once more to the seemingly never-ending Great Refund Saga. Does the reshuffle entitle travellers to cancel their holidays, relating as it does to government guidance based on what is happening at the place of destination? Is there still a ‘flicker of hope’ that Summer holidays can still go ahead? Is the flicker of hope test relevant now that the new Package Travel and Linked Travel Arrangements Regulations 2018 are in force? Will travel to amber destinations invalidate insurance? We’ve got our own views on all of these questions, but it remains to be seen what the courts make of them – and it’s surely just a matter of time before refund claims start making their way through the courts, not least those outstanding from Lockdown 1. Meanwhile, in other, more cheery, news, The UK and the EU have agreed the first annual deal on the management of shared fish stocks since Exit Day. The European Commission has stated that the deal, which sets out the total allowed catch for more than 75 shared stocks in UK and EU waters for the rest of 2021, creates a ‘strong basis for continued EU-UK co-operation in the area of fisheries’ after months of wrangling. If Tom Yarrow’s fish-based arguments on the Lugano Convention are right, could we see further co-operation in the juridical field sooner rather than later? We’re not holding our breath, but any measure of agreement between the UK and EU has to be a Good Thing as far as cross-border litigators are concerned. In the meantime, the domestic courts have been busy again this week…
A Red Light for Meddling Experts
We have all – at one time or another – had reason to suspect the independence of an expert. The whole regime of expert evidence in civil litigation relies on parties trusting that experts and the lawyers who instruct them understand and comply with the basic ‘rules of the game’ set down in CPR Part 35, its Practice Direction and other guidelines. The recent decision of Mrs Justice Joanna Smith in Dana UK AXLE Ltd v Freudenberg FST GmbH  EWHC 1413 (TCC) provides a stark warning about the consequences if those rules are not obeyed. The decision is essential reading for all practitioners in travel law about how one’s own experts should be managed and the need for careful consideration not only of opposing experts’ conclusions but the information on which those conclusions are based.
The claim arose out of pinion seals supplied by the defendant to the claimant for use on Jaguar Land Rover vehicles. The claimant alleged that the seals were defective and failed prematurely. Both parties had permission to call expert evidence in various fields of engineering. On the seventh day of the trial the claimant applied, successfully, to exclude the defendant’s expert evidence on the grounds that the experts and their evidence failed to comply with the basic precepts of the CPR.
Conduct of the defendant’s experts and lawyers
There was a lengthy procedural history to the application, which arguably showed commendable patience on the part of the claimant. The defendant’s reports were served late and did not comply with the CPR in that they did not consistently identify the information on which a conclusion was based and no notes were provided in relation to site visits. The claimant however offered to consent to relief from sanctions being granted on condition that the breaches were rectified. An order was duly made at the PTR by O’Farrell J granting relief on condition that the defendant rectified the breaches.
Smith J found that the defendant had not complied with O’Farrell J’s order. There was, she concluded, a “serious breach” of the requirement to provide full details of all materials provided to the experts. Documents disclosed during the course of the trial revealed that “a significant amount of information was provided to each of the experts instructed by [the defendant] over a long period of time that has never been disclosed to [the claimant] or otherwise identified”. Indeed, it became clear that the experts had “unfettered and unsupervised access” to the defendant’s staff and were provided with information by them during calls and virtual meetings. There was however, ‘no record of any of these calls or meetings and no record of the precise nature of the information that was provided.’
The court was also highly critical of the defendant’s lawyers: “It is most unfortunate, to say the least, that Mr Wildschutz [a Partner at Fladgate LLP with conduct of the claim for the defendant] does not appear to have considered it necessary to supervise the interactions that were quite clearly taking place on a regular basis between [the defendant] and its experts.”
The court concluded that the defendant’s failure to comply was ‘not just a technical or unimportant breach’: “Where experts are liaising directly with their clients to obtain information which is not recorded (because there is no legal involvement and no vigilance on the part of the expert in keeping detailed contemporaneous notes of such contact and in providing those notes to his or her instructing solicitor), there can be no transparency around the information to which they have been privy and no equality of arms with their opposing experts of like discipline.”
The court noted that the 2014 guidance specifically contemplated that instructions would be provided to experts by solicitors: “However, it should go without saying that parties cannot get around this requirement for transparency by engaging directly with their experts and by-passing any involvement on the part of their solicitors.”
Still further, the court found that the defendant had breached O’Farrell J’s order by not disclosing site visits its experts made, which the judge described as “entirely unacceptable”, while the reports also failed to identify the source and details of the data and other information relied on in support of each conclusion: “To my mind this is a paradigm example of what can go wrong if an expert is left to obtain information direct from his clients without legal involvement and, indeed, if that expert does not even require sight of the detailed information on which he then relies for the purposes of preparing his report – as seems to have been the case here.” That flow of information continued even between the joint expert meetings and the preparation of the joint statement; something which the defendant’s counsel did not seek to excuse. The Court held that the only reason that the TCC Guide did not specify that the parties themselves should not be involved in negotiating or drafting joint statements was because it did not anticipate they ever would be.
The Court concluded that “I think there is some justification for the suggestion [by the solicitor with conduct of the claim for the claimant] that [the defendant] has interposed itself in the experts’ reports to such a degree that they cannot confidently be said to be the result of the experts’ independent analysis.”
The court concluded that ‘the provision of expert evidence is a matter of permission from the Court, not an absolute right (see CPR 35.4(1))’ and that the breaches were so serious as to justify excluding the defendant’s expert evidence altogether (a decision which must be near fatal to the defence).
She concluded that the “establishment of a level playing field in cases involving experts requires careful oversight and control on the part of the lawyers instructing those experts” – especially where the experts were from other jurisdictions.
“For reasons which have not been explained, there has been no such oversight or control over the experts in this case,” she said.
“The use of experts only works when everyone plays by the same rules. If those rules are flouted, the level playing field abandoned and the need for transparency ignored, as has occurred in this case, then the fair administration of justice is put directly at risk.”
It is not uncommon for experts to require further information from a client before they can render an opinion and there is nothing inherently improper in doing so. But lawyers will have to be scrupulous to ensure that (i) they are present where any direct contact occurs between the expert and client, (ii) that detailed notes are taken, and (iii) that such contact and notes are disclosed to the opposing party well in advance of any joint meeting (and ideally, before reports are exchanged). Parties ought to have no role (even if mediated by the lawyers) in the preparation of joint statements. It goes without saying that lawyers must be open and up-front about such dealings in correspondence.
Likewise, parties will be rewarded by paying close attention to the section of an opposing expert’s report which sets out the information they have relied on. Has everything been disclosed? Does the report refer to information/evidence which must have come from another source? Does the report reach a conclusion without identifying the source? Has the expert engaged in any private correspondence with a party? Part 35 questions can be deployed to investigate these issues further.
Ultimately, parties should be in no doubt about the evidence upon which an expert has formed their view and are entitled to equal access to that evidence. As Dana UK AXLE Ltd v Freudenberg FST GmbH shows, litigants who fails to meet that basic test do so at their peril.
About the Author
Called in 2010, Tom Collins is ranked in the Legal 500 as a specialist in Travel Law. He has considerable experience across a wide range of travel and private international law disputes and has advised claimants and defendants in multi-party actions.
A Green Light for Digital Justice
On 28th May this year HM Courts and Tribunals Service launched its Digital Justice pilot scheme. In the first instance, nine law firms representing Claimants will trial the scheme only in relation to single-party claims, that is, claims involving one Claimant and one Defendant, the latter of which must be based within the jurisdiction. The scheme, which is supported by the new Practice Direction 51ZB (which provides for a three year trial period), will allow firms to use a digital case management service (the Digital Claims Portal) to issue claims, provide an acknowledgement of service, inform the court of any agreed extension to file the defence, respond to a claim, and provide information for a directions questionnaire, after which the claims will be managed in the usual way.
For present purposes it is important to note that it is not possible at present to issue claims against a foreign Defendant within the Portal; and that as a trap for the unwary, for the purposes of the Limitation Act 1980 a claim is brought when issued by the court, and not when initiated through the Portal (PD51ZB2.2(4)). Furthermore, where within four months of issue a Defendant has not been notified through the Portal that the claim has been issued, it is automatically dismissed without the need or ability to examine why this has occurred (PD51BZ3.3). Where within six months of notification of the claim the Defendant has not responded to it, but the Claimant has not sought default judgment or applied to transfer the claim out of the Portal, the claim will be automatically dismissed (PD51ZB6.7).
We have reported before that HMCTS is very keen to roll out this digital method of case management for all claims, from pre-action hearings through to enforcement; this is the future, whether we like it or not. And indeed the provisions of Practice Direction 51ZB seem eminently sensible, even if they are counter-intuitive for those of us who have become accustomed to the current rules on, for example, issue and service. The Digital Claims Portal Pilot Scheme is presently of academic interest only to most cross border specialists, but it appears inevitable that it will eventually be rolled out, both in terms of scope and applicability. It might be as well for litigators to grapple with the need to engage with the technology sooner rather than later. And to bear in mind that, when issuing claims, it’s probably better not to have to rely on the ‘issued when lodged’ rules, whichever system you’re working within.
About the Author
Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. Last year she was named Best Lawyers’ Travel Lawyer of the Year 2020/2021 and the Lawyer Monthly Women in Law Awards 2020: Personal Injury, and she has recently been invited to join the Consultative Group of Experts to the UNWTO Committee for the Development of an International Code for the Protection of Tourists.
When you think 1CL, the first words to spring to mind are ‘young’ and ‘luxury’, so it will come as no surprise to readers to learn that when we saw that ‘young luxury travellers’ are to be targeted by a new specialist firm, we were agog. The firm, More Life VIP, will be targeting our age range, too, with an offering aimed at 18 to 34 year olds hankering after exclusive bespoke holidays to exciting destinations such as Mykonos, Ibiza and Dubai. A glance at the website confirms our first thoughts; yachts, infinity pools, clubbing…it’s got 1CL written all over it. We wish the newbie well, but having some experience of the industry and of disgruntled travellers, we would offer one piece of advice: the more you promise, the harder it is to deliver to the satisfaction of your audience. As Ward LJ said in Milner v Carnival Plc  3 All ER 701, “it is part of the [court’s] task to compare the expectations against the reality. Here the expectations were sky high.” …again, it’s got 1CL written all over it.
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