HE WHO PAYS THE PIPER – THE INDEPENDENCE OF EXPERTS IN CONSTRUCTION DISPUTES
The overriding truth of experts in construction disputes
He who pays the piper does not call the tune in the Technology and Construction Court when it comes to the giving of expert evidence. This is because although experts owe a duty of care to those instructing them the Civil Procedure Rules make it clear that they have an overriding duty to the court to assist it in matters within the expert’s expertise. They must provide independent evidence of their opinion. The Civil Justice’s Protocol for the Instruction of Experts to give evidence in Civil Claims says that a useful test of independence is whether the expert would express the same opinion if given the same instructions by an opposing party. Paragraph 4.3 of the Protocol says experts should not take it upon themselves to promote the point of view of the party instructing them or engage in the role of advocates.
Never a truer word
In the construction field construction consultants dealing with disputes in litigation or ADR, principally in Adjudication, often wear two hats, one as the expert and the other as a negotiator or advocate on behalf of their clients. When these two roles become blurred and overlap this is when the expert finds himself in real difficulty. In Cala Homes (South) Ltd and ors -v- Alfred McAlpine Homes East Limited  EWHC 7 (Ch) the expert of one of the parties wrote an article in which he said:
“ … the man who works the Three Card Trick is not cheating, nor does he incur any moral opprobrium, when he uses his sleight of hand to deceive the eye of the innocent rustic and to deny him the information he needs for a correct appraisal of what has gone on. The rustic does not have to join in: but if he chooses to he is “fair game”.
“If by an analogous “sleight of mind” an expert witness is able so to present the data that they seem to suggest an interpretation favourable to the side instructing him, that is, it seems to me, within the rules of our particular game, even if it means playing down or omitting some material consideration. “Celatio veri” is, as the maxim has it, “suggestio falsi”, and concealing what is true does indeed suggest what is false; but it is no more than a suggestion, just as the Three Card Trick was only a suggestion about the data, not an outright misrepresentation of them.”
A hired gun
This expert went on to say that the expert is the “hired gun” but the Judge in this case said that the expert’s approach to the drafting of the expert’s report was wrong. He condemned the expert’s brazen view of the expert as someone who is employed to twist the truth in order to satisfy the needs of his paying client. The Judge was scathing of this approach and said:
“The function of the court is to discover the truth relating to the issues before it. In doing that it has to assess the evidence adduced by the parties. The Judge is not a rustic who has chosen to play a Three Card Trick. He is not fair game. That some witnesses of fact driven a by a desire to achieve a particular outcome to the litigation, feel it necessary to sacrifice truth in pursuit of victory is a fact of life. The court tries to discover it when it happens. But in the case of expert witnesses the court is likely to lower its guard. Of course the court will be aware that a party is likely to choose as its expert someone whose views is most sympathetic to its position. Subject to that caveat, the court is likely to assume that the expert witness is more interested in being honest and right than in ensuring that one side or another wins. An expert should not consider that it is his job to stand shoulder to shoulder through thick and thin with the side which is paying his bill……”
The expert wearing two hats
In General Medical Council -v- Professor Roy Meadows  EWCA Civ 1390 the Court of Appeal reiterated the well known principles by which experts should present their evidence in court established in National Justice Cia Naviera SA -v- Prudential Assurance Co Ltd  2Lloy’ds Rep 86, 81-82 (The Ikarian Reefer). Among these are the central and core needs to ensure the expert’s evidence is “uninfluenced as to form and content by the exigencies of litigation”, “it should be independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise”. “An expert should never assume the role of advocate”.
In London Fire and Emergency Planning Authority -v- Halcrow Gilbert Associates Limited and ors  EWHC 2546 (TCC) the court criticised the evidence of an expert who had been retained “in a dual capacity both to devise and no doubt in due course for reward to supervise the carrying out of his scheme for remedial works and as an expert in the litigation….” This led to a situation where the expert’s client was claiming privilege for a meeting which the expert attended where it was claimed that the primary purpose was for him to advise in relation to this litigation, which was privileged, rather than to advise on the implementation of his own his remedial scheme to be adopted by the Authority which would not have been privileged.
In Anglo Group plc -v- Winther Brown & Co Ltd and BML (Office Computers) Limited  EWHC Technology 127 8th March 2000 one of the experts wrote in a report “ an expert witness appointed under current procedure is under no duty to the court as an expert”. He went on to say “My duty as an expert was simply to help my client win his case on the facts as defined in the statement of claim on truthful expert evidence that I had compiled, examined and presented – nothing more”. He added “It does not mean that an expert must be impartial as demonstrated by the fact that if asked the same question by either party he would give the same answer”.
In evidence one of the other members of the company and colleague of this expert admitted to having been employed as a claims consultant, and who had not been trained as an expert witness, and said that his quantum report was intended to be used as a “negotiating tool based on representation primarily of Winther Brown. It was not made as an expert witness report and had never intended as such”. The Judge referred to this as further evidence to support the conclusion that the principle expert of the same company was indeed a hired gun who was simply more concerned with satisfying his paying client than in putting forward unbiased opinion evidence.
What does this mean for solicitors that instruct experts who may later to be found to be less than independent? The answer is that they should be aware of the court’s power of disclosure of their instructions under the Civil Procedure Rules and to get their house in order so that they are not tainted by any challenges to the expert’s independence by an opposing party in the litigation.
The expert is an individual in which the court places great trust. Although instructions given to an expert by solicitors are not privileged and therefore can be revealed to the court, provided the expert states the substance of his instructions in his report the court will not order disclosure unless there are reasonable grounds to consider his statement of his instructions to be inaccurate (CPR 35. 10 (4)). Practice Direction 35.3. 2(3) reiterates this, stating the report must “contain a statement setting out the substance of all the facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based”.
However, the court will allow cross examination of an expert only if it is satisfied that there are reasonable grounds to consider that the expert’s statement of instruction is inaccurate or incomplete, and it appears to be in the interests of justice to do so (PD 35.4).
In the unreported case of Morris -v- Bank of India (Ch D, 15 November 2001) the claimant complained that there were numerous places in his report where the expert had referred to matters which were not contained in the statements of case and documents disclosed to the defendant, where he had not given the source of his belief and which in certain cases raised factual allegations not made in the statements of case. The court did not order disclosure but the defendant was ordered to file a document recording details of the facts and assumptions which were referred to or relied on by the expert in the report.
This case is illustrative of the challenges that can be made by a party that complains that privileged and undisclosed documents were given to an expert by solicitors as part of his instructions and he then failed to comply with CPR 35. 10(3). In the event the court only ordered disclosure to the extent necessary to clarify the facts on which the report was based.
In Lucas -v- Barking Havering and Redbridge Hospitals NHS Trust  EWCA Civ 1102 the claimant’s expert reports referred to witness statements which had not yet been served on the defendant. The defendant applied for disclosure of these witness statements but the Court of Appeal did not order disclosure and ruled that under CPR 35.10(3) the expert’s report must state “the substance of all material instructions” but this does not mean that he has to set out all the information or material supplied to him. Solicitors should be aware that there is a possibility of the court ordering disclosure of the instructions or associated documents and for this reason they should ensure that their expert provides a full and accurate summary of the substances of all material instructions that have been given to him. In addition, they should check the expert’s report before it is served to ensure that it does not contain any suggestions that the statement of instructions may be incomplete.
In order to claim litigation privilege over communications between clients or their lawyers for the purpose of obtaining information or advice in connection with existing or contemplated litigation, the litigation must be in progress or in contemplation, the communication must be made with the sole or dominant purpose of conducting the anticipated litigation.
In Serious Fraud Office -v- Eurasian Natural Resources Corporation Limited (ENRC)  EWHC 1017 the Serious Fraud Office successfully defeated claims for privilege by a company over various documents that were produced by forensic accountants during an investigation into allegations of bribery and corruption. The ruling suggests that it is going to be difficult to claim litigation privilege in connection with many internal investigation materials. ENRC argued that the interview notes, accountants’ reports and factual updates were subject to litigation privilege on the grounds that their dominant purpose was to enable the ENRC to obtain advice or evidence in connection with criminal litigation.
The court decided that the review of these documents by the accountants was not made in anticipation of litigation. The review was not for this dominant purpose and “identifying issues” in anticipation that the SFO might carry out a criminal investigation into ENRC’s affairs was not the same thing as preparing for the conduct of adversarial litigation or enabling lawyers to give advice about its conduct. To the extent that the accountants were supporting the lawyer’s investigations, the documents that it generated were not created for the dominant purpose of the conduct of a defence to criminal proceedings, or enabling lawyers to advise ENRC on the conduct of their defence.
Permission to appeal against this decision to the Court of Appeal has been granted. Until this decision is reversed, experts and their clients will be on alert that pre-action, preliminary advice and investigation by experts will not be covered by litigation privilege and may have to be disclosed.
Some recent TCC decisions have fleshed out the rules on rules of disclosure of experts’ reports where there has been a change of expert. In Stuart Coyne -v- Alec Morgan, Alex Harrison trading as Hillfield Home Improvement the Technology and Construction Court Siting at Birmingham Case No: B50BM 015 decided that as a condition of granting permission for production and reliance upon a second expert’s report, the court can order the draft of the first expert’s report to be disclosed. However, the court stopped short of allowing disclosure of attendance notes or memoranda or other documents recording the substance of any conversation between the first expert and the Defendant’s solicitors.
In Allen Tod Architecture Limited -v- Capita Property and Infrastructure Limited  EWHC 2171 in exercising its discretion under CPR 35 (4) (1) the court may give permission for a party to rely upon a second replacement expert’s report usually only on the grounds that the report of the first expert is disclosed. This is to discourage so called expert shopping where a party discards the first expert and seeks a second opinion. Even in cases where expert shopping has not occurred if the parties have activated the pre-action protocol the court may order that the first expert’s report should be disclosed.
The underlying principle to this case law is that all experts are required to be independent and not the mouthpiece of those that employ them and pay their fees. The piper does not call the tune of the expert.
12 Old Square Chambers