A leading London law firm, Penningtons Manches Cooper (PMC), has issued an apology to the High Court and the opposing party after overstepping in requesting amendments to a joint statement from an expert witness.
PMC acknowledged a failure to comprehend the applicable rules and guidance. Simon Lofthouse KC, acting as a High Court judge, noted “substantial and impermissible interference in the expert statement process” but found no evidence indicating the firm attempted to alter the expert’s opinion.
The ruling came in response to the claimant’s application for permission to engage a new structural engineering expert in a dispute involving West London homeowners and insurer AXA XL. The case concerns an indemnity claim for damage to surrounding properties caused by the construction of a new basement, with the trial scheduled for September.
Concerns raised by AXA XL’s solicitors led PMC to admit that their conduct during the joint statement process did not fully comply with the rules and guidance. Partner Peter Stockill conceded in his witness statement that comments and proposed amendments were made to several drafts of the joint statement, which were not permissible. He apologised unreservedly to the court and AXA XL, explaining that the non-compliance stemmed from a misunderstanding of the rules. Stockill emphasized that neither the claimants nor their counsel were involved in the joint statement process.
According to paragraph 13.6.3 of the Technology and Construction Court (TCC) Guide, legal advisers should only request experts to consider amending a draft joint statement in exceptional circumstances, particularly when there are serious concerns about the court being misled or misunderstanding the issues and such concerns should be communicated to all experts involved.
Judge Lofthouse remarked that PMC believed it was permissible to amend the draft statement to ensure it reflected the pleaded issues, a belief he described as misguided rather than a deliberate disregard for the principles. Despite this, he highlighted the substantial and impermissible interference by those acting for the claimants, which contravened both authority and the TCC's applicable guidance.
Permission was granted for a replacement expert, as this would not affect the trial date and the expert evidence was crucial. The judge acknowledged that refusing permission could lead the claimants to change lawyers, potentially impacting the trial date. He also noted that any claim the claimants might have against PMC for loss of chance would be complex, although this alone was not a reason for granting permission.
Judge Lofthouse ordered the claimants to pay costs on an indemnity basis, including 30% of AXA XL’s costs related to the joint statement and the new expert's report. A PMC spokeswoman stated that the judge recognised the issue as a procedural mistake for which the firm made a full and frank admission and apology, stressing that at no time did they seek to alter the expert's views.
