A new judgment by the High Court of England and Wales emphasises the duties of experts to co-operate with each other in the sharing of relevant information. The case, Dana UK AXLE Ltd v Freudenberg FST GmbH [2021] EWHC 1413 (TCC) (26 May 2021), concerned the failure of pinion seals fitted to rear axles of motor vehicles.

An order was made at pre-trial review that revised expert reports should be filed and served, including the provision of details of all materials provided to the experts by the defendant’s solicitors, and disclosing all documents.

The plaintiffs alleged non-compliance.

The judge was satisfied that not all documents had been disclosed by the experts: “Even now Dana may not have all of the documents that should have been disclosed owing to what I can only assume to be the different approaches that have apparently been taken by individual members of FST’s legal team to the question of privilege when reviewing at speed the 2,500 documents provided to them by FST in response to my directions with a view to identifying which of those documents needed to be disclosed to Dana. During the course of Mr Webb’s submissions, I was taken to duplicate versions of emails which showed varying degrees of redaction. Mr Wygas accepted in relation to at least one example of a redacted email that it should not have been redacted because it was obvious (from its unredacted duplicate) that privilege did not apply.”

This was a breach of the “Guidance for the Instruction of Experts in Civil Claims 2014”, at par 30, which stated: “Experts should try to ensure that they have access to all relevant information held by the parties, and that the same information has been disclosed to each expert in the same discipline. Experts should seek to confirm this soon after accepting instructions, notifying instructing solicitors of any omissions.”

The judge continued: “It is entirely unacceptable for Dana and the Court to discover during the course of the trial that FST’s experts have not only engaged in site visits about which they did not inform Dana’s experts at the time and in respect of which they have apparently kept no records, but also that there were, in fact, more site visits than had previously been disclosed in their reports. In the circumstances I am unsurprised that Dana’s concern in respect of this paragraph of the PTR Order again arises in the context of paragraph 30 of the 2014 Guidance and the requirement that experts on both sides should have access to the same information. It is patently clear that FST’s Experts have had access to FST’s various sites (the extent of which has only just been revealed) which has not been shared with Dana’s experts and it is difficult to come to any conclusion other than that the guidance in the TCC Guide at 13.3.2 as to the need for experts to “co-operate fully” with one another, including in particular “where tests, surveys, investigations, sample gathering or other technical methods of obtaining primary factual evidence are needed” has been ignored. I note in this regard that in circumstances where FST served no factual evidence from its witnesses as to the manufacturing process at its various production sites, this was exactly the sort of case where one might have expected the experts on both sides to cooperate over obtaining the primary factual evidence that they needed in order to understand those processes.”

She cited Fraser J in Imperial Chemical Industries Limited v Merit Merrell Technology Limited [2018] EWHC 1577 at [237]: “The principles that govern expert evidence must be carefully adhered to, both by the experts themselves, and the legal advisers who instruct them. If experts are unaware of these principles, they must have them explained to them by their instructing solicitors. This applies regardless of the amounts in stake in any particular case, and is a foundation stone of expert evidence. There is a lengthy practice direction to CPR Part 35, Practice Direction 35. Every expert should read it.”

She concluded: “The establishment of a level playing field in cases involving experts requires careful oversight and control on the part of the lawyers instructing those experts; all the more so in cases involving experts from other jurisdictions who may not be familiar with the rules that apply in this jurisdiction. For reasons which have not been explained, there has been no such oversight or control over the Experts in this case.”

Full judgment here.