Issue 39 October 2021 - Journal - Page 100
How can the Solicitor Assist in
Safeguarding Expert Evidence?
by Michael Wright Senior Associate, Dentons
A recent case highlights the role of solicitors in the proper handling of expert evidence.
this nature, without solicitor involvement, may also raise
questions as to the client’s influence on the expert’s
ultimate opinions and report and, consequently, as to
the expert’s independence.
The reliance of clients on expert evidence is increasingly present in the early stages of disputes. Expert
evidence plays an important role in decision making
and is persuasive in alternative dispute resolution
(ADR). Although ADR does not always resolve a dispute without resorting to litigation, solicitors should
be aware of the ways they can handle expert evidence
at the early stages of the dispute in order to mitigate
issues arising at trial.
u CPR 35.9 should be kept in mind by the parties,
their experts and solicitors (where one party has access
to information which is not reasonably available to another party, the court may direct the party who has
access to the information to prepare and file a document recording the information, and serve a copy on
the other party).
The recent judgment of Joanna Smith J in Dana UK
Axle Ltd v Freudenberg FST GmbH  EWHC 1413
(TCC) provided observations on the role of the solicitor in safeguarding expert evidence from being excluded at trial.
u Joanna Smith J also observed that legal advisers
should not be involved in the negotiating and drafting
of joint statements. It was apparent in this case that
the experts were relaying information from the joint
meetings to the defendant’s employees and seeking
input on responses.
The claimant brought proceedings against the defendant following the alleged premature failure to pinion
seals manufactured by the defendant and supplied to
the claimant. On the seventh day of trial, the claimant
was successful in its application to exclude the defendant’s expert evidence. This was due to the defendant’s failure to provide full details of all materials
provided to each of the defendant’s experts. In particular, the defendants failed to disclose the factual information provided orally by the defendant to its
experts and subsequently failed to list all documents
and information with which the experts relied on.
The court further observed that the defendant’s other
breaches of CPR 35, PD 35 and related guidance
would have been sufficient in themselves to justify
refusing the defendant permission to rely on the
u Separately, experts should also be focused on the
need to ensure that information received by them has
also been received by their opposite numbers.
With thanks to Millie Leonard who co-authored this
article. This article was first published by Construction Law on 7 July 2021, please see
Chartered Surveyors, Valuers and Expert Witness
It is apparent from the commentary made by Joanna
Smith J that solicitors play a role in ensuring that expert evidence is obtained on a level playing field. In
addition, oversight by the solicitors is needed to control any free flow exchange of information between
experts, instructing clients and in-house experts. The
main points for solicitors to consider are listed below.
u Joanna Smith J observed that establishing a level
playing field in cases involving experts required careful oversight and control on the part of the solicitors
instructing those experts. This is especially relevant
where cases involve experts from other jurisdictions
who might not be familiar with the relevant rules.
Tim Davies is a Chartered Building Surveyor, and the practice principle and founder
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Surveyor Professional Negligence
Building Related Insurance Claims
Party Wall Matters
Building Conservation/Period Buildings
Landlord and Tenant issues
u It is suggested that solicitors who are instructing an
expert on behalf of their client should adopt a “gatekeeping” role to carefully supervise interactions between
client and expert. Interactions which do not include the
instructing solicitors immediately risk creating a lack of
transparency as to what has been discussed and what
information and documentation may have been provided by the client to the expert, especially where such
interactions have gone unrecorded. Direct contact of
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BSc (Hons), MRICS, MAE, Cert EW (Civil and Criminal)
Windsor House, 107 Talbot Road, Talbot Green CF72 8AE
Tel: 01443 229576
Email: email@example.com - Website: www.trdavies.co.uk
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