The Dekagram: 10th June 2024

Articles

10/06/2024

Glover & Anor v Fluid Structural Engineers & Technical Designers Ltd & Ors [2024] EWHC 1257 (TCC) – a case highlighting the dangers of getting involved in the preparation of experts’ joint statements

This judgment follows an application by the claimants within proceedings seeking permission to replace their structural engineering expert, Mr Hardy. The 6th defendant sought revocation of the claimant’s permission to rely on Mr Hardy’s evidence due to admitted interference in the expert process.

The issues for the court were whether the claimants should be granted permission to replace their expert and if so, what conditions should be attached to the permission.

The factual background to this case:

The Claimants are the owners of 124 Westbourne Grove, London. In or around 2016, they commenced renovation works including the creation of a new basement. Whilst carrying out those works damage was suffered to other properties including 122 Westbourne Grove, the adjoining house. The claimants brought claims against a number of parties, including the original building contractor for the works (Chase Construction (Contracts) Limited) and the appointed structural engineers for the works (Fluid Structural Engineers & Technical Designers Limited). The claimants’ updated schedule of loss identified a VAT inclusive sum of just over £1.8 million in respect of damage to the adjoining property. The substantive  trial is due to commence in September 2024.

What was the admitted interference by the claimant’s solicitors with their expert?

The claimants’ solicitors had significant input into the preparation of the Experts’ Joint Statement (EJS) and notably version 4 of the EJS had substantively changed from version 3, which caused the 6th defendant’s expert to be concerned that the language employed in the new version suggested there may have been involvement from lawyers. The 6th defendant invited the claimants’ solicitors to confirm that Mr Hardy had not been provided with instructions as to the substance or wording or the EJS and that he was not provided with wording for the draft or requested to include certain opinions or alter opinions already expressed in the previous draft. The claimants did not expressly answer these queries in subsequent correspondence. It took the 6th defendant’s solicitors to issue an application seeking the revocation of the claimants’ permission to rely on the evidence of Mr Hardy before the claimants’ solicitors accepted that their conduct of the joint statement process was not in compliance with the CPR or Technology and Construction Court Guide.

The claimants then made an application for permission to change their expert. The claimants disclosed communications between the solicitors and the expert Mr Hardy which did reveal that they had made amendments by way of tracked changes to the third draft, and removed the metadata so that it would not show claimants’ solicitors amends. Overall, the claimants’ solicitors made extensive revisions and deletions to the third draft. Though what was clear from the correspondence was that the solicitors believed it was permissible to amend the draft statement where it was thought the content did not reflect the pleaded issues in the case. The court found such a belief to be misguided but not the same as a deliberate and knowing disregard of the applicable principles.

Court’s Decision

The Court was referred to a number of authorities concerning circumstances in which permission should be given for a replacement expert, most of the authorities were directed to the conditions to be attached to any change in experts, namely: Edwards-Tubb v JD Wetherspoon plc [2011] EWCA Civ 136; Adams v. Allen & Overy and Others [2013] EWHC 4735 (Ch); Murray v. Devenish [2017] EWCA Civ. 1016; Dana UK Axle Ltd v. Freudenberg FST GmbH [2021] EWHC 1413 (TCC); Rogerson v. ECO Top Heat Power Ltd [2021] EWHC 1807 (TCC); Patricia Andrews v. Kronospan Ltd [2022] EWHC 479. However, none of the above reported decisions were on all fours with the present case, as understandably every decision concerning this issue is likely to be very fact sensitive.

The Court had regard to the overriding objective to deal with cases justly and at a proportionate cost. The Court granted the claimants permission to obtain a replacement expert witness in the field of structural engineering given such evidence would be central to the issues in the case. There had been admitted impermissible interference by the claimants’ solicitors in the expert statement process, but there had been a full admission and apology by the solicitors, and a great deal of weight was placed on the fact that the further expert evidence could be timetabled in a way which would preserve the trial date and not cause unfairness to the 6th defendant.

The cost consequences of the grant of permission for a replacement expert were largely agreed between the parties. This was a very costly mistake for the claimants’ solicitors. The claimants were required to pay the 6th defendant’s costs of and occasioned by their initial application and the claimants’ subsequent application. The claimants to bear the costs thrown away as a consequence of the replacement of their expert and the instruction of a new expert and the new experts joint statement (paras 1, 2 and 6 of the Order), to be assessed on the indemnity basis. The claimants were also ordered to pay 30% of the 6th defendant’s costs in considering the structural engineering joint statement and the new expert report, such costs again to be paid on the indemnity basis!

This case clearly highlights the need for parties to follow the applicable rules and guidelines in the expert process, or risk fundamentally undermining the credibility and independence of your expert and ultimately your case.

About the Author

Called in 2018, Francesca Kolar accepts instructions over all of chambers’ practice areas, including most particularly personal injury and clinical negligence. Prior to pupillage she spent two years teaching debating to students in inner-London secondary and primary schools, for the social mobility charity Debate Mate.

Perisi v. Elsaftawy (unreported, 30th May 2024, County Court at Oxford)

Remember 2020-21?  Trying to navigate the end of the Brexit transition period at the same time as being locked down at home?  This recent reserved judgment of DJ Lumb in Oxford recalls to mind that difficult time.

This was a medical tourism case involving cosmetic surgery in Poland in 2016.  English solicitors issued a claim form in 2020 and posted it to the defendant surgeon in Poland in January 2021, with particulars of claim, response pack and medical evidence, all translated into Polish.  The covering letter stated that that this was “by way of service.”  However, service in Poland could only be effected via a local bailiff.  The Claimant’s solicitors therefore asked the High Court Foreign Process Section, in March 2021, to do the necessary, and obtained an order from the court extending time for service to June 2021.

The defendant surgeon then received some negligent legal advice.  Pursuant to it, he served an acknowledgement of service, a defence and expert evidence.  He did not take the point that he had not been validly served in Poland.  He did not contest jurisdiction.  He did not even plead the obvious limitation defence.  Instead, he continued to litigate in England for two years: attending a CCMC, serving disclosure, instructing English solicitors, applying to join his Polish insurers as defendants, to amend his defence, and so on.

The Claimant’s solicitors naturally interpreted all of this as the surgeon submitting to the English jurisdiction.  They did not pursue their request to the FPS to serve him properly in Poland.  In early 2023 the surgeon applied to strike out the claim on the basis that he had never been served.  The Claimant cross-applied under CPR r.6.16 to dispense with service.

The Claimant argued that it was far too late to contest jurisdiction, and that the Defendant was not prejudiced by dispensing with service.  The Defendant argued that the acknowledgement of service he had served had been a nullity since he had never been validly served.

DJ Lumb came down hard on the Claimant’s solicitors.  He did not accept that they had ever intended that posting the claim form to the surgeon would constitute service.  They had not even attempted service.  Their covering letter – “by way of service” – was a sham.  Not only would he not dispense with service, but he would strike out the claim as an abuse of the court’s process (thus disapplying QOCS).

How many cases purportedly served in 2021 are in the same boat as this case?

About the Author

Ben Rodgers was called in 2007 and now specialises in personal injury work with an emphasis on accidents abroad, including maritime accidents (he is himself an excellent sailor). He is listed for personal injury in the Legal 500, where he is said to be ‘go-to counsel for complex liability disputes; calm and composed, but will fight ferociously when required.’

Featured Counsel

Ben Rodgers

Call 2007

Francesca Kolar

Call 2018

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