What do you do when your Expert is struck out on the First Day of Trial?

A question that Freudenberg FST GmbH and their lawyers Fladgate LLP were left asking themselves following the Technology & Construction Court’s decision to exclude their expert evidence for egregious breaches of their experts’ duty to the Court. While this is an extreme example, it does underline a hardening of the Court’s attitude towards lax management of experts and the importance of ensuring that proper control of expert evidence is managed (and monitored) by the legal team.

The case of Dana UK Axle Ltd v Freudenberg FST GmbH [2021] EWHC 1413 (TCC) was a claim brough by Dana against Freudenberg for the supply of defective goods. Freudenberg supplied pinion seals (“Seals”) to Dana which Dana incorporated into a vehicle rear axle and supplied to Jaguar Land Rover for installation on 9 different vehicle models.

As part of the claim both parties instructed multiple experts to provide technical evidence on the mechanics of the vehicle parts and the adequacy of the Seals.

Mrs Justice Joanna Smith explained in his judgment that:

‘The principles that govern expert evidence must be carefully adhered to, both by the experts themselves, and the legal advisers who instruct then. If experts are unaware of these principles, they must have them explained to them by the instructing solicitor. This applies regardless of the amounts at stake in any particular case, and is a foundation stone of expert evidence. There is a lengthy practice direction to CPR Part 35, Practice Direction 35. Every expert should read it.’

She then went on to outline the well-known practical building blocks upon which expert evidence is provided, and as set out in the Ikarian Reefer [1993] 2 Lloyds LR 68. Which states as follows:

1. Those experts of the same discipline should be provided with the same information;
2. Experts should provide their report unfettered by the pressures of the litigation; and
3. The expert is not an advocate of the party.

In this case, for reasons which were never explained, there was a fundamental breach of these duties by the experts appointed by Freudenberg as they:

• Failed to identify the documents that they had relied on in their reports;
• Took part in a free flow of information between the experts and Freudenberg which was neither monitored nor controlled by Fladgate LLP. This led to the experts having access to information and to site that was not provided to Dana’s experts.
• Sought additional information from Freudenberg while they were supposed to be narrowing issues in the dispute, based on disclosed information in the case, to prepare a joint statement.

In the circumstances, Mrs Justice Joanna Smith summed up the position as follows:

‘The provision of expert evidence is a matter of permission from the Court, not an absolute right (see CPR 34.4(1)) and such permission presupposes compliance in all material respects with the rules…. 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.’

On this basis, she had no hesitation in revoking Freudenberg’s permission to rely on its expert evidence and, in effect, handing if not victory then a huge advantage to Dana at the trial.

This Judgement and the financial consequences which flowed from it, are stark warnings of the importance of ensuring that you always appoint legal advisors who are familiar with the rules of the Court in which your case is being heard. Experts, by definition, are experts in their specific field they are not experts in legal procedure and cannot be expected to comply with the rules of the court without proper guidance, oversight and monitoring by your legal team.

Cardium Law are experts in dispute resolution and have extensive experience of litigating claims in, and adhering to the rules and regulations of, the Technology & Construction Court, the Commercial Court, the Chancery Court, the Queen’s Bench and the Circuit Commercial Court (to name but a few). For expert advice on your dispute don’t hesitate to contact either chrismacqueen@cardiumlaw.com  or Juliasmith@cardiumlaw.com or by telephone at: +44 (0)75 5382 4127.