Interference in obtaining expert evidence — solicitors under scrutiny

In Glover & Glover v AXA XL Insurance Company Limited, the Court considered the admissibility of expert evidence where the Claimants sought permission to change their structural engineering expert following preparation of the experts' joint statement ("EJS").

During the EJS process, AXA XL's expert indicated to his solicitors, RPC, that "significant changes" had occurred to the Claimants' expert's views between drafts, with involvement from the Claimants' solicitors, Penningtons Manches Cooper ("PMC"). RPC queried whether PMC had complied with paragraph 13.6.3 of the TCC Guide, which provides that legal advisers "must not be involved in either negotiating or drafting the experts' joint statement" save in exceptional circumstances.

PMC initially maintained that its approach was "entirely in line" with the TCC Guide. Following further correspondence and the issue of an application, PMC acknowledged that its conduct of the joint statement process "was not fully in compliance with the applicable rules and/or guidance" and proposed that the Claimants' permission to rely on their expert be revoked, with permission to instruct an alternate expert.

The Court found there had been "substantial and impermissible interference in the expert statement process", but accepted that PMC's departure, however misguided, was not a deliberate and knowing disregard of the principles. Mindful of the overriding objective and that the trial date would not be affected, it granted permission for an alternate expert, engineering evidence being central to the issues; to refuse would place the Claimants at "a very significant and possibly insurmountable disadvantage".

The Court declined to order disclosure of all communications between PMC and the expert, finding this was not a case of "expert shopping" and that the disclosure already given was adequate. It noted that had more serious interference occurred, or had a change of expert required vacating the trial, the outcome might have been different.

The case is a timely reminder that the duties owed by experts under CPR Part 35 are to the Court, not to the instructing party, and that solicitors must not interfere unduly in the evidence-gathering process.