A recent case highlights some of the things that can go wrong when an expert is contacted directly by the client rather than the lawyer, and acts as a useful reminder of the requirements of good expert report writing. Giles Eyre considers the lessons.
The recent case of Dana UK AXLE Ltd v Freudenberg FST GmbH involved a claim arising out of the alleged premature failure of pinion seals for vehicle rear axles, which were then supplied to Jaguar Land Rover.
As a result of the behaviour of the defendant’s multiple experts in the preparation of their reports and joint statement, the judge ruled that the defendant could not rely on that evidence at the trial. This resulted in obvious serious consequences for the defendant. The judge held that the behaviour in relation to the expert evidence had undermined the independence of the experts and that the breaches of the rules in relation to the use of experts meant that the ‘level playing field’ that the rules about the use of experts was intended to produce had been abandoned.
In the context of many professions, such criticism from a judge would be likely to result in proceedings raising questions as to fitness to practise.
‘The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.’ CPR 35.10(3)
‘The expert’s report must contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based.’ PD35 3.2(3)
The Guidance for the Instruction of Experts in Civil Claims 2014 deals with the giving of instructions to experts by lawyers and the receipt of instructions by experts from lawyers at paragraphs 20 to 23.
As the substance of all material instructions the expert has received, whether in writing or orally, is to be included in the report, the expert should summarise the instructions to enable the judge to understand what issues the expert is reporting upon. Any instruction, for example, not to mention an unfavourable aspect of the case, even if given on the telephone as a supplemental instruction to a letter of instruction, would have to be included in the report. The guidance states:
The mandatory statement of the substance of all material instructions should not be incomplete or otherwise tend to mislead. The imperative is transparency. The term “instructions” includes all material that solicitors send to experts. These should be listed, with dates, in the report or an appendix. The omission from the statement of ‘off-the-record’ oral instructions is not permitted. Courts may allow cross-examination about the instructions if there are reasonable grounds to consider that the statement may be inaccurate or incomplete.
Dana v FST
In Dana v FST, Smith J said the guidance specifically contemplated that instructions would be provided to experts by solicitors and not by the parties themselves, as the wording set out above indicates. Although the guidance makes no express reference to state that instructions are not to be given to experts by the parties themselves (or their personnel), that is clearly intended and acting otherwise would put at risk the independence of an expert and the required openness in relation to their instructions.
If information is provided to the expert directly by the parties, which is material to the report and the opinion within it, it must be set out in the report and identified as such. By that route, not only is it apparent the basis on which the expert reports, but it also ensures that the other side’s experts are also aware of such information.
Instead, in Dana v FST a significant amount of information was provided to each of the defendant’s experts by people working for the defendant over a long period , without ever being disclosed or identified to the claimant. Effectively, the experts had been provided with “unfettered and unsupervised access” to the defendant’s personnel and were provided with information by them during calls and virtual meetings without any record of these calls or meetings or the precise nature of the information that was provided. The defendant’s solicitor had apparently not considered it necessary “to supervise the interactions that were quite clearly taking place on a regular basis” between the defendant and its experts.
As a result, the judge stated: ”There can be no transparency around the information to which they have been privy and no equality of arms with their opposing experts of like discipline.” The judge also warned that “parties cannot get around this requirement for transparency by engaging directly with their experts and by-passing any involvement on the part of their solicitors.”
The defendant further breached the express terms of a court order by not disclosing site visits its experts made, which the judge condemned as “entirely unacceptable”, while the reports also failed to identify the source and details of the data and other information relied on in support of each proposition/opinion.
The judge’s conclusion
The judge explained: “To my mind this is a paradigm example of what can go wrong if an expert is left to obtain information direct from his clients without legal involvement and, indeed, if that expert does not even require sight of the detailed information on which he then relies for the purposes of preparing his report – as seems to have been the case here. There was a free flow exchange of information between the experts and FST’s employees and in-house technical specialists, through extensive email exchanges, numerous telephone and video conferences and at site visits, apparently with no, or very little, oversight from [their solicitors].”
The consequence was that the judge concluded “that FST had interposed itself in the experts’ reports to such a degree that they cannot confidently be said to be the result of the experts’ independent analysis.”
It was also clear that this flow of information between the defendant’s personnel and the experts continued during the period between the joint expert meetings and the signing of their joint statement. The Practice Direction (PD35 9.6) states that ‘a statement must be prepared by the experts dealing with the required issues (which include areas of agreement and disagreement and reasons for disagreement) and yet, in this case, the parties themselves joined in with their experts after the joint discussion. Smith J pointed out that the only reason there was no express provision that the parties themselves should not be involved in negotiating or drafting joint statements was because it had never been anticipated they would be.
1) An expert must make clear in the report the content of all instructions received in relation to the matters the subject of the report, whether oral or written, whenever given, and by whomsoever they are given.
2) An expert must make clear in the report the source of all of the material information relied upon within the report and in reaching an opinion, and make clear which of the facts stated in the report are within the expert’s own knowledge. This involves distinguishing between what the expert has been told or been provided with and what the expert measures or observes for themselves.
3) If an expert relies upon the findings of an examination or inspection in coming to an opinion, full details of such examination or inspection must be provided – by whom it was carried out, if not by the expert themselves, when and where it was carried out and what it involved and what findings were made.
4) There must be transparency about the information (and the source of such information) on which an expert relies.
5) The expert must never forget that their evidence must be ‘the independent product of the expert uninfluenced by the pressures of litigation’ (PD35 2.1).
6) A clinical expert will often receive instructions directly from the claimant, given in writing but also orally at the time of the interview or examination. The expert may also receive ‘silent instructions’ from the clinical observation made at an examination. That is often useful information on which the expert will rely (to some extent at least) in reaching an opinion. The expert must ensure that the report contains within it the substance of all facts and instructions so obtained and which are material to the opinions expressed in the report or upon which those opinions are based (PD35 3.2(3)). Not only does that provide proper support for the expert’s opinion, but it provides to any other expert instructed in the case the required ‘openness’ and ‘level playing field’ and the opportunity to consider the same facts and instructions in reaching their opinion.
About the author
Giles Eyre is a retired barrister and an Associate Member of Chambers at 9 Gough Chambers, London, having practised for many years in the field of injury claims and at the interface of law and medicine. He continues giving training and presenting workshops for experts on providing effective expert reports and evidence, and on medico-legal issues, in his own right and for training organisations. He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), and author of Clinical Practice and the Law – a legal primer (October 2018) both published and sold by Professional Solutions Publishing (www.prosols.co.uk) and through book retailers, and regularly writes articles on these subjects. He blogs on issues relevant to court experts in civil claims at www.Medico-LegalMinder.net .
Special Offer: ‘Clinical Practice and the Law – a legal primer’ (normal price £34.95) is available at £19.95 plus £4.95 p&p. and ‘Writing Medico-Legal Reports in Civil Claims – an essential guide’ (normal price £69.95) is available at £54.95 plus £5 p&p only direct from the author by email to email@example.com for a limited time. More information about the books and reviews are available at www.prosols.co.uk