Stephen Pritchett, Barrister and Accredited Commercial Mediator
That there is an obligation imposed upon parties to litigation to engage with one another to further the overriding objective is to state the obvious. However, it often happens, especially where parties are polarised or there is ill feeling, that expert witnesses appointed under Part 35 “fall out” or fail to agree upon the true scope of the evidence they ned to give leading, in some cases, to unnecessary correspondence, possible applications and delay.
In a recent judgment given by Chief Master Marsh in the Chancery Division (UPL EUROPE LIMITED and others v AGCHEMACCESS CHEMICALS LIMITED and others) 17 November 2016 it was stated in clear terms as follows:-
“In almost every case where expert evidence is permitted by exchange of reports it is desirable for there to be discussion about the scope of the issues under consideration; and in a case where scientific analysis is needed an attempt should be made to agree what is to be analysed and by what method (unless the approach is well established and unlikely to be contentious). This is to ensure that, as far as possible, the reports are properly matched or, as it is sometimes put, they are not as if ‘ships passing in the night’. This engagement may incur modest additional cost but is likely overall to save costs. Whether the discussion is best held between the lawyers or between the experts (or both) will depend upon the case and the issues which arise. It is clear, however, that in every case the parties must co-operate in the process of producing expert evidence with a view to ensuring, as far as possible that the exercise is properly focussed. The result should be that the reports are shorter and deal only with the core issues upon which expert evidence is required.
13. This is not a new approach. It is one regularly directed in the Chancery Division and elsewhere and was recommended by Briggs LJ in the Chancery Modernisation Review: Final Report [6.28 to 6.34]. In my judgment, the court when granting permission for expert evidence should give consideration to giving a direction for a discussion to be held well before exchange of reports, although it may well be sufficient in more straightforward cases for that discussion to take place without a face to face meeting.”
In cases where there is no proper formulation of the issues for the experts or where it is apparent that they are approaching their task differently, the need for early discussion and, if necessary, further directions will need to be considered. The sting in the tail is that the recalcitrant expert or obstructive opponents may well open up their clients to significant costs consequences should it be necessary to take the matter back before a Judge for further directions. Any “innocent” party needs to ensure however that their demands are reasonable and measured.
Stephen J Pritchett
Commercial and Property Counsel
23 Essex Street Chambers