pnBlawg

the professional negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Getting your hands on an undisclosed expert report

When the other side wants to change expert are you entitled to their original expert’s reports and other documentation containing the substance of the expert’s opinion? This was the question considered in the case Allen Tod Architecture v Capita Property and Infrastructure Ltd ([2016] EWHC 2171) - a professional negligence claim by an architect against a structural engineer in the TCC. Unsurprisingly the claimant in that case resisted disclosure on the grounds that the documents and reports sought were privileged. The claimant had grown exasperated by his expert’s delays and shortcomings and so turned to an alternative expert. At paragraph 32 of his judgment the judge set out the authorities and principles to be applied when considering whether to grant permission to a party to change expert:  (1) The court has a wide and general power to exercise its discretion whether to impose terms when granting permission to a party to adduce expert opinion evidence (2) In exercising that power or discretion, the court may give permission for a party to rely on a second replacement expert, but such power or discretion is usually exercised on condition that the report of the first expert is disclosed (and privilege waived - see Vasiliou v Hajigeorgiou [2005] 1 WLR 2195) (3)  Once the parties have engaged in a relevant pre-action protocol process, and an expert has prepared a report in the context of such process, that expert then owes a duty to the Court irrespective of his instruction by one of the parties, and accordingly there was no justification for not disclosing that report as a condition for changing expert (see  Edwards-Tubb v JD Wetherspoon plc [2011] 1 W.L.R. 1373)  (4) The court's power to exercise its discretion whether to impose terms when giving permission to a party to adduce expert opinion evidence arises irrespective of the occurrence of any ‘expert shopping’. It is a power to be exercised reasonably on a case-by-case basis, in each case having regard to all the circumstances of that particular case.  (5) The court will require strong evidence of ‘expert shopping’ before imposing a term that a party discloses other forms of document than the report of expert A (such as attendance notes and memoranda made by a party's solicitor of his or her discussions with expert A) as a condition of giving permission to rely on expert B (see (BMG (Mansfield) Ltd v Galliford Try Construction Ltd  [2013] EWHC 3183)  In the case of Allen Tod itself the judge found that there was no real reason for making a distinction between the expert’s final report, draft or provisional reports or other documents setting out his opinion: neither would have been discloseable if the expert had remained the claimant’s expert. He ordered disclosure of the original expert’s notes and preliminary report as a condition of permitting the claimant to rely on the new expert and he also ordered disclosure of any document in which the original expert had provided his opinion. To the extent any other material was contained in any such document, it was to be redacted before disclosure.

Friends become Enemies aka The Dangers of Free Advice

  We were often warned against giving legal advice to our friends.  As professionals, if we give advice of a professional nature, there is (surprisingly to me) a distinct possibility that it will be relied upon.  This accords with the well-established Hedley Byrne doctrine of liability for the assumption of responsibility.  When giving advice, this liability can arise even if we don’t charge for our services.  Negligent mis-statement is the ground usually pleaded but in the instant case it formed only a part of a Preliminary Issue determination as to the nature and scope of any duty owed by the friend/professional.   The parties were, in the one corner, a married couple and in the other corner, their erstwhile architect friend.  The architect gave recommendations to the couple about their proposed garden scheme.  An issue arose as to what duty she owed at the time (for alleged economic loss) and deciding this involved a full examination of the architect’s role and recommendations.   Given that the judge found it impossible to find the basic elements of a contract in the numerous email exchanges between the parties, and no money was charged or mentioned by the architect, this limb of the claim naturally fell away.  However, he found that the architect still owed a tortious duty of care because her advice had been formal, specialist and extensive.    You might recall from earlier this year that the newspapers seemed to like this story of people falling out over rather expensive landscaping.  Nevertheless, I prefer to think of this case as in the manner in which the TCC judge put it: a ‘cautionary tale’.    (1) PETER BURGESS (2) LYNN BURGESS v BASIA LEJONVARN [2016] TCLR 3

An expert too far .....

The Commercial Court gave short shrift to parties calling insurance experts to opine on meaning of a widely used construction insurance policy. The case of Aspen Insurance UK Limited v Adana Construction Limited [2013] EWHC 1568 (Comm) concerned cross claims for declarations as to whether the claimant insurer was contractually bound to cover the defendant contractor under the terms of a combined liability insurance policy. The defendant was joined in proceedings for damages for personal injury sustained by a crane driver following the collapse of some foundation piles. One issue of note in this case was the way the trial judge treated the issue of insurance experts. The Claimant was given permission at the CMC to call expert evidence from an Insurance expert with wide experience of the combined contractors' liability insurance policy placed in the Lloyd's Market and of the market in which such insurance is placed. The expert was to address the contention that there was a conventional understanding as to the division between public liability and product liability, with the latter cover 'kicking in' exclusively once the Defendant's works had been handed over. According to the Claimant such conventional understanding formed part of the factual matrix of the policy and it was said that that understanding was of assistance in construing the terms of the contract. The judge at the CMC gave permission but left the issue of the admissibility of the expert evidence to the trial judge. At the start of the trial the judge expressed reservations about the relevance and admissibility of the expert evidence but agreed to hear it. The Claimant duly called their expert. The Defendant called evidence in rebuttal. In his judgement Mackie J did not mince his words when expressing his views on the use of such experts: "I expressed reservations about the relevance and admissibility of this evidence at the outset but agreed to hear it. In one sense the Claimant got what it deserved, first responsive evidence from the Defendant even more inadmissible than its own and secondly emergence of a recent example of the Claimant having acted inconsistently with its alleged market understanding .... [the experts'] evidence was irrelevant". The experts had given evidence that included admitting that it was from their interpretation of the contract that they drew their views. On issues of contractual interpretation parties would be well advised before attempting to call expert evidence as to industry use or practice relating to those terms, to conduct a proper analysis of the reason that evidence is necessary. If the evidence simply corroborates one party's understanding of the interpretation then the evidence is likely to be inadmissible or irrelevant. However if a party could demonstrate that industry knowledge and practice informed the contractual intentions of both parties in relation to the disputed provisions then it may be appropriate to request permission for such experts.

Conflicting medical evidence: solicitors' duties in CICA claims

In Boyle v Thompsons Solicitors [2012] EWHC 36 (QB) Mr Justice Coulson considered the scope of a solicitor’s duty in resolving conflicts of expert medical evidence. The claimant (“Mrs B”) claimed damages from the defendant solicitors (“the Solicitors”) for their allegedly negligent conduct of her compensation claim to the Criminal Injuries Compensation Authority (“CICA”).   The CICA claim related to injuries sustained as a result of an assault on Mrs B by her former partner in November 2001. Mrs B applied to the CICA for compensation and in 2003 it made a final award of £5,150. This figure proved to be unacceptable to Mrs B and she instructed the Solicitors to lodge an appeal on her behalf. By the time of the appeal hearing in 2006, Mrs B had taken early retirement on medical grounds. The principal issues in the appeal became the extent to which her PTSD was permanent (which meant she could never work again) and whether the PTSD was solely due to the November 2001 assault.   The appeal was not straightforward because the medical evidence was contradictory. There was evidence from Dr T, Mrs B’s treating psychiatrist, to the effect that the PTSD was permanent and was solely caused by the November 2001 assault. However there was also evidence from an independent psychologist, M suggesting that the PTSD was not permanent and could not be solely attributed to the assault. Furthermore Mrs B had been the victim of a number of assaults, of which only the November 2001 passed the CICA threshold test and thus qualified for compensation. In addition Mrs B had a history of depression.   The CICA Panel rejected Mrs B’s appeal, deciding (amongst other matters) that the cause of Mrs B’s PTSD was multi-factorial, that the PTSD was not permanent and that it was not the cause of her retirement.     Mrs B sued the Solicitors. Notwithstanding that the Solicitors had asked M, the psychologist, to reconsider her opinions in the light of Dr T’s views, Mrs B argued in effect that they should have made further approaches to M, the psychologist, in an attempt to “beef up” her evidence in relation to the permanent nature of the PTSD and its causation.   In finding that the solicitors were not negligent, Mr Justice Coulson noted an important feature of the CICA scheme, namely that applicants were required to disclose all medical reports obtained. He considered that the solicitors had acted appropriately in asking M to reconsider her views in the light of Dr T’s evidence. It was an unrealistic criticism of the solicitors that they should have done something more about the difference in views between M and Dr T. It was not for the solicitors to “manipulate the evidence of the independent expert, particularly in a CICA claim..” where all reports had to be disclosed to the Panel. In the circumstances the solicitors did all that they reasonably could and Mrs B’s claim was dismissed.   As a postscript, the judgment also contains an useful analysis of quantum, where the underlying action concerns a CICA claim.