Preliminary (pre-report) experts’ meetings Preliminary (pre-report) experts’ meetings

Preliminary (pre-report) experts’ meetings

Experts, in particular medical experts, are likely to be familiar with experts’ discussions that take place after the exchange of reports. This...
A Day in the Life of a Medicolegal Expert Witness A Day in the Life of a Medicolegal Expert Witness

A Day in the Life of a Medicolegal Expert Witness

Sue Lightman is a Professor of Ophthalmology and Consultant Ophthalmologist who has been undertaking medicolegal Expert Witness work for over 20...
Thomas Murray Joins EWI as a Corporate Partner Thomas Murray Joins EWI as a Corporate Partner

Thomas Murray Joins EWI as a Corporate Partner

We are pleased to welcome a new Corporate Partner
Pfizer Inc v Uniqure Biopharma BV [2024] EWHC 2672 (Pat) Pfizer Inc v Uniqure Biopharma BV [2024] EWHC 2672 (Pat)

Pfizer Inc v Uniqure Biopharma BV [2024] EWHC 2672 (Pat)

The judge in this patent case found that the claimants’ gene therapy expert had developed, quite possibly guided by lawyers, the understanding...
How not to use AI in expert evidence How not to use AI in expert evidence

How not to use AI in expert evidence

In this US case, an expert in fiduciary services used Microsoft’s Copilot to cross-check calculations he used in expert evidence. He was unable...
Celebrating Success at the Sir Michael Davies Lecture Celebrating Success at the Sir Michael Davies Lecture

Celebrating Success at the Sir Michael Davies Lecture

Successful Certification candidates receive their certificate from Lord Hodge.
Independence, bias and conflicts of interest Independence, bias and conflicts of interest

Independence, bias and conflicts of interest

Hon Mr Justice Trower provides invaluable guidance for Expert Witnesses at the 2024 the Sir Michael Davies lecture.
Podcast Episode 5: Range of Opinion Podcast Episode 5: Range of Opinion

Podcast Episode 5: Range of Opinion

Range of Opinion is the focus of the 5th episode of the Expert Matters Podcast. We catch up with Colin Holburn, Chair of the EWI Membership Committee,...
A Day in the Life of a Water Quality Expert A Day in the Life of a Water Quality Expert

A Day in the Life of a Water Quality Expert

Tim White is a chartered chemist who uses his expertise to assess chemical risk from exposure to water. He has been an Expert Witness for over 40...
Podcast Episode 4: Expert Fees Podcast Episode 4: Expert Fees

Podcast Episode 4: Expert Fees

Simon and Sean discuss expert fees and catch up with Dominic Woodhouse from Partners in Costs to talk about cost management and budgeting in civil...
A Day in the Life of a Fitted Kitchen and Bathroom Expert A Day in the Life of a Fitted Kitchen and Bathroom Expert

A Day in the Life of a Fitted Kitchen and Bathroom Expert

Jerry Ponder uses his 40+ years of experience in fitted interiors to provide expert evidence on the design, product quality, installation and project...
Podcast Episode 3: Single Joint Expert Podcast Episode 3: Single Joint Expert

Podcast Episode 3: Single Joint Expert

Simon and Sean discuss Single Joint Experts and catch up with two EWI members who act as Single Joint Experts to hear about their experiences, the...

Check out our Case Updates and Member Magazine

Looking for more news relevant to the Expert Witness community? Why not check out our database of cases relevant to Expert Evidence or the latest and previous editions of our member magazine, Expert Matters.

News

Clicking on one of the topics below will display news items relevant to that topic. You can also use the search bar below to identify news items.

Letter reveals Expert discussed the contents of the Joint Statement with counsel
Simon Berney-Edwards 3829

Letter reveals Expert discussed the contents of the Joint Statement with counsel

bySimon Berney-Edwards

Back in March we highlighted the case of Patricia Andrews & Ors v Kronospan Limited [2022] EWHC 479 (QB) where £225k worth of Expert Evidence was revoked due to the conduct of an Expert Witness. In the case, the Expert had conferred with and sought opinions from the Claimants’ solicitors on issues relevant to ongoing joint expert discussions.

 

Now another judgment has highlighted a case where an Expert has been found to be actively involving counsel by inviting feedback on their Joint Statement.

 

In Gary Pickett v David Balkind [2022] EWHC 2226 (TCC), HHJ Paul Matthews (sitting as a Judge of the High Court) gave judgment on applications brought under two application notices.

 

One of these applications was from the claimant’s solicitor who wanted to prevent use of a letter which had been disclosed relating to their expert structural engineer (Mr Cutting) who would be unable to attend court because he was due to have eye surgery. However, the letter also included four paragraphs relating to the drafting of the Joint Statement. These paragraphs make it clear that the expert had not only actively been seeking feedback from counsel, but they had also involved counsel in the drafting.

 

The defendant’s solicitor had written to the claimant’s solicitor asking them about this and reminding them of the TCC Guidance:


‘13.6.3 Whilst the parties’ legal advisors may assist in identifying issues which the statement should address, those legal advisors must not be involved in either negotiating or drafting the experts’ joint statement. Legal advisors should only invite the experts to consider amending any draft joint statement in exceptional circumstances where there are serious concerns that the court may misunderstand or be misled by the terms of that joint statement. Any such concerns should be raised with all experts involved in the joint statement.’

 

The claimant’s solicitor tried to argue that this was privileged information and that it had been disclosed by mistake. They had then made an application to prevent the letter from being used.

 

However, on review HHJ Paul Matthews concluded:

“77. ......In my judgment, if there is a deliberate disclosure of information by a party to its opponent, even for an interlocutory purpose, it ceases to be confidential as against that party, and hence loses its privilege.

78. Moreover, I see no justification for separating out, and treating differently, the different parts of the letter in this case. As I pointed out earlier, the first four paragraphs appear to reveal a breach of the expert independence principle. To my mind those paragraphs are less worthy of protection than the remainder, but the remainder is the part which most justifies the reference to the letter in the witness statement of the solicitor. Accordingly, I conclude that privilege has been waived in the whole of the letter of 3 May 2022, and (as I have already said) no injunction should be granted to restrain use of the information contained in it.”

 

The judgment continues by looking at the defendant’s cross-application for:

  1. production for inspection of “the written instructions/comments/aide memoire” provided to Mr Cutting
  2. permission to cross-examine the claimant’s experts at trial
  3. permission to deploy the letter from Mr Cutting in evidence at trial

 

The first point is an interesting one and the judgment contains much discussion as to whether these should or should not be disclosed by an expert or whether they should be specifically disclosed in this case.

 

On this point, HHJ Paul Matthews states that “not every communication between experts and those instructing them is part of their “instructions” for the purposes of rule 35.10(3)”. Therefore, whilst the content of instructions for the report should be included, there is not the same expectation for Joint Statements.

 

He concluded:

“95. I refuse to order disclosure of the aide memoire, or of any “comments”, “suggestions” and “requests” in relation to the experts’ joint statement or Mr Cutting’s report. On the other hand, but subject to any contrary direction of the trial judge, the defendant may cross-examine Mr Cutting (but not Mr Pryce) in relation to any such aide memoire, “comments”, “suggestions” or “requests”.”

 

Key to the trial going forward is that HHJ Paul Matthews has given permission for the defence to cross-examine Mr Cutting at trial and use the letter as evidence.

 

Simon Berney-Edwards, EWI Chief Executive Officer, said:

 

“It is clear the defence will be seeking to discredit Mr Cutting and will try to show that his independence has been compromised. I predict a rather uncomfortable time in the witness box for Mr Cutting. Sadly it just goes to show the difficult situations you will find yourself if you fail to follow the rules.”

 

We’ll keep an eye out for the main trial and report back. In the meantime, if you need a reminder of the Rules and Regulations surrounding Expert Meetings and Joint Statements, why not check out our supporting resources or sign up for our webinar on 17th November?

Share

Print
Comments are only visible to subscribers.