Jenni Glover & Anor v Fluid Structural Engineers & Technical Designers Limited
[2023] EWHC 3219 (TCC)
Jenni Glover & Anor v Fluid Structural Engineers & Technical Designers Limited & Ors
23 May 2024
[2024] EWHC 1257 (TCC)
High Court
A construction case needed a new expert witness. The judge said the lawyers for the builders messed up by changing the expert's report, but they still let them get a new expert. The judge didn't delay the main part of the trial, but the parts about money will be dealt with later because of other legal issues.
Key Facts
- •Claimants sought permission to replace their structural engineering expert, Mr. Hardy.
- •Sixth defendant (AXA XL) sought revocation of permission to rely on Mr. Hardy's evidence due to claimants' interference in the expert process.
- •Claimants admitted interference in the expert process, involving amendments to draft joint statements.
- •The trial was scheduled to commence on September 16, 2024.
- •A party wall award, subject to appeal, significantly impacted the quantum of damages.
Legal Principles
Rules governing expert evidence must be carefully adhered to by experts and legal advisors. Solicitors can help identify issues but cannot negotiate or draft the joint statement, except in exceptional circumstances to correct material misunderstandings of law or fact.
TCC Guide paragraph 13.6.3, Imperial Chemical Industries Ltd v. Merrit Merrall Technology Ltd [2018] EWHC 1577 (TCC) at [237]
The court has discretion to impose conditions on granting permission to change experts, often involving disclosure of previous expert reports to prevent 'expert shopping'. This is fact-sensitive and should be exercised in line with the overriding objective.
Edwards-Tubb v. JD Wetherspoon plc [2011] EWCA Civ. 136, Adams v. Allen & Overy [2013] EWHC 4735 (Ch), Murray v. Devenish [2017] EWCA Civ. 1016, BDW Trading Ltd v. Integral Geotechnique (Wales) Ltd [2018] EWHC 1915 (TCC), Dana UK Axle Ltd v. Freudenberg FST GmbH [2021] EWHC 1413 (TCC), Rogerson v. ECO Top Heat Power Ltd [2021] EWHC 1807 (TCC), Andrews v. Kronospan Ltd [2022] EWHC 479 (QB), The University of Manchester v. John McAslan & Partners Ltd [2022] EWHC 2750 (TCC), Avantage (Cheshire) Ltd v. GB Building Solutions Ltd [2023] EWHC 802 (TCC)
Outcomes
Permission to rely on Mr. Hardy's evidence revoked.
Substantial impermissible interference in the expert statement process by the claimants' solicitors.
Permission granted for Richard Tant to be the replacement expert.
Structural engineering evidence is central; the trial date can be preserved; while there was solicitor interference, it didn't change Mr. Hardy's core opinions; claimants' weren't directly involved; full and frank admission and apology by solicitors.
Further disclosure of attendance notes and emails between Mr. Hardy and his solicitors refused.
Sufficient disclosure already provided; additional disclosure unnecessary and potentially problematic.
Trial date for liability maintained; quantum to be addressed later.
Quantum can be timetabled without jeopardizing the trial; party wall appeal's impact not sufficient to adjourn the entire trial.
Claimants to pay costs of AXA XL's application and costs thrown away due to the expert change; 30% of AXA XL's costs of reviewing Mr. Tant's report.
Reflects additional costs caused by the need for a new expert; follows precedent in Adams v. Allen & Overy.