SEPARATE COMMUNICATIONS FROM A JOINT EXPERT
There are some grey areas to being a joint expert witness, but one thing is clear: talking to one party without the other’s knowledge is not on
Come auguest 2008, the expert produced his second report. He now said the balcony work did not pass muster. You might imagine that the contractor was surprised by this
The duty of an expert witness is to give objective, unbiased opinion on matters within their expertise. It has to be opinion “independent of the parties and free from the pressures of litigation”. That’s one of those legal phrases that has a fuzzy edge to it, and can lead to a row in court. It happened very recently in Peter Morris Edwards vs Bruce & Hyslop (Brucast). And it’s all the more interesting because it’s a case that is ever so tiny in money terms, can be handled by one expert witness and has turned into a complete tangle.
Go to Liverpool, if you haven’t been there already. It was once a wealthy city. The merchants built some handsome buildings. Mr Edwards owns one. It has beautiful wrought-iron balconies. Three new balconies were ordered from Bruce & Hyslop (Brucast) for supply and installation. Unfortunately, customer and contractor fell into dispute about the work done. Sensibly, they tried to get to the bottom of their differences by asking an architect, Mr Brotherhood, for his expert opinion. No, it wasn’t an appointment as arbitrator or adjudicator, it was just seeking an architect’s view on quality. In short, did Mr Edwards have grounds for a gripe? The architect said: “I consider the casting work to be of an acceptable standard”. So the contractor wanted the account paid. It wasn’t, so it began proceedings in October 2006 for its £13,700. Mr Edwards said nothing was payable and added a £7,000 counterclaim for defective work, which then climbed to £60,000 a year later. By late 2009, the parties had each spent £60,000 on costs over a quarrel that has yet to come to trial!
Where were we? Ah yes, the expert witness wrangle. Two years ago, the judge ordered that the architect should be the sole independent expert. Come August 2008, the expert produced his second report. He now said the balcony work did not pass muster. You might imagine that the contractor was surprised by this. The judge said: “At some time after the second report, the claimant’s solicitors learned that, unbeknown to them, the defendant’s solicitors had been in contact with Mr Brotherhood during the period between his first and second report. The precise nature, scope and extent of those clandestine communications is, even now, unknown to the claimant or to the court”.
Mr justice coulson explained that it is a complete no-no for a single joint expert to have separate dealings with one party
The upshot of this is that the contractor’s lawyers sought a report from another expert. The snag at this point is that the contractor has to go back to the trial judge and ask permission to field a second expert. The risk to be weighed here is similar to playing snakes and ladders. Within sight of getting to trial, we slide back to somewhere near the beginning. Judge MacKay in Liverpool allowed a second expert.
That decision is a procedural one and can be appealed to a higher judge. It was. The higher judge, Mr Justice Coulson, explained that it is a complete no-no for a single joint expert to have separate dealings with one party. It was an even higher court – the Court of Appeal – that in 2002 said that without the consent of the other party, the expert should “never” meet, have sole access to, or contact one party alone. The point of such a meeting, said the Court of Appeal, must be, at least in part, to keep hidden certain information.
In fairness, the court listened to the explanation of Mr Edwards’ lawyers. True, they were unhappy with Mr Brotherhood’s first report and had explained to him the incomplete and inaccurate information. But “it would be quite wrong to suggest that any improper pressure was brought to bear upon Mr Brotherhood to change his view”.
In fairness too, the barrister for Mr Edwards accepted that sole contact with the expert should not have happened, but that “it’s not a criticism to be levelled at the expert”. I bet this expert is less than happy to be caught up in all of this.
One coda: the application to reverse Judge MacKay’s procedural decision also canvassed the notion that the case should now be transferred to another judge. That went down like a lead balloon. Mr Justice Coulson said: “One party cannot expect to win on every issue, and cannot threaten to take home his bat and ball if he does not”. Quite!
This article first appeared in Building Magazine on 8th January 2010
With full credit to Mr Tony Bingham
BDAS specialise in: providing contract advice, resolving construction disputes, managing construction claims & adjudications and will give you competitive, independent advice tailored to your specific construction problems. If you could benefit from this please call Jon now on 07795 231 231 or email:Jon@BDASweb.com