During a High Court trial - Dana UK AXLE Ltd v Freudenberg FST GmbH - three expert witness statements were excluded after Mrs Justice Joanna Smith ruled that their opinions appeared to have been influenced by the party instructing them – resulting in multiple breaches of a pre-trial order; the rules on expert evidence and the 2014 guidance on instructing experts in civil claims.
Mrs Justice Joanna Smith stated “…… establishment of a level playing field in cases involving experts requires careful oversight and control on the part of the lawyers instructing those experts especially when the experts were from other jurisdictions.”
She added:
“For reasons which have not been explained, there has been no such oversight or control over the experts in this case. The use of experts only works when everyone plays by the same rules. If those rules are flouted, the level playing field abandoned and the need for transparency ignored, as has occurred in this case, then the fair administration of justice is put directly at risk.”
On day seven of the trial, Dana applied to exclude Freudenberg FST’s technical expert evidence. At the pre-trial review, Mrs Justice O’Farrell ordered that Freudenberg FST would be permitted to rely on its technical experts, subject to meeting three conditions.
Mrs Justice Smith found that Freudenberg FST had committed a “serious breach” of the requirement to provide full details of all materials provided to the experts, as a disclosure of documents made during the trial showed that a significant amount of information was provided to each of the Freudenberg FST experts that had never been disclosed to Dana or otherwise identified. The judge also stated that it was clear Freudenberg FST experts had “unfettered and unsupervised access” to personnel and were provided with information during calls and virtual meetings.
She stated:
“However, there is no record of any of these calls or meetings and no record of the precise nature of the information that was provided.”
Two witness statements about the evidence were provided by Alexander Wildschutz of City firm Fladgate – who act for Freudenberg FST. In pre-trial correspondence, the firm had confirmed disclosure of all the documents which were the basis of the experts’ opinion. Mrs Justice Smith observed that this was an assertion which seemed to be entirely mistaken.
The judge went on to say that it was “difficult to square” the first statement made by Mr Wildschutz – stating that the discussions made between Freudenberg FST and the experts were solely telephone calls to two of them requesting assistance with locating documents and technical information or logistical assistance – with evidence that “Mr Wildschutz already had this available to him at the time of his statement” showing that the discussions were far more detailed.
Mrs Justice Smith went on to say:
“Mr Wildschutz explains that he now regrets that he did not ask Mr Bauer (a Freudenberg FST contact) to keep a note of these conversations.
It is most unfortunate, to say the least, that Mr Wildschutz does not appear to have considered it necessary to supervise the interactions that were quite clearly taking place on a regular basis between FST and its experts.”
She added that Freudenberg FST’s failure to comply was “not just a technical or unimportant breach” adding:
“Where experts are liaising directly with their clients to obtain information which is not recorded (because there is no legal involvement and no vigilance on the part of the expert in keeping detailed contemporaneous notes of such contact and in providing those notes to his or her instructing solicitor), there can be no transparency around the information to which they have been privy and no equality of arms with their opposing experts of like discipline.”
The judge went on to say that the 2014 guidance specifically contemplated that instructions would be provided to experts by solicitors.
She added:
“However, it should go without saying that parties cannot get around this requirement for transparency by engaging directly with their experts and by-passing any involvement on the part of their solicitors.”
Mrs Justice Smith said she was “inclined to agree” when Dana’s solicitor, Ms Nicola Phillips of Crowell & Moring, stated that the failure to comply with the order was “unlikely to have been inadvertent” - as complying would have revealed breaches of CPR 35. She found that “the experts’ analyses and opinions would appear to have been directly influenced by FST” and continued:
“I think there is some justification for the suggestion [by Ms Phillips] that FST has interposed itself in the experts’ reports to such a degree that they cannot confidently be said to be the result of the experts’ independent analysis.”
