The Risks Of Claims Against Solicitors Regarding Expert Evidence

• Published date: 04 August 2020
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Corporate and Company Law, Arbitration & Dispute Resolution, Trials & Appeals & Compensation
• Law Firm: Beale & Co
• Author: Mr Andrew Jones and Joe Bryant

Expert evidence can make or break a party's case at trial Andrew Jones and Joe Bryant look at three recent Court decisions where the parties got it wrong and consider the risks to solicitors acting in litigation regarding expert evidence.

Experts have an unusual dual role in litigation, in that they owe:

• A duty of care to their instructing party. This is a duty to provide expert opinion within a reasonable range; and
• A duty to the Court to provide objective, unbiased, impartial and independent evidence. This duty overrides the above duty to their instructing party. Experts should follow the requirements set out in Part 35 of the Civil procedure Rules and the Civil Justice Council's "Guidance for the instruction of experts in civil claims".

Three recent decisions of the Court show the potentially catastrophic consequences of experts and the parties getting it wrong.

Essex County Council v UBB Waste (2020)¹

In this case, the Council entered into a 25 year '800m contract with UBB for the design, construction and operation of a biological waste treatment facility to process household waste.

The Council sought to terminate the contract on the grounds the waste treatment facility failed various tests. UBB denied any default and alleged any problem was due to the composition of the waste provided by the Council. The Court found that UBB made a number of serious design errors and found in favour of the Council (see our general update on this case here)

UBB relied upon one expert on all the design and technical issues. The Judge found that there were "obvious and serious conflicts of interest" in UBB's expert's evidence given:

• The expert and his company had in fact been retained by UBB on the project and had extensive involvement in the design of the facility. The expert was therefore effectively giving expert evidence on his own designs;
• UBB's sister company had previously served a preaction letter on the expert's company alleging its designs were negligent;
• The expert requested that UBB withdraw its potential claim against his company before agreeing to provide expert evidence. Full assurance against future claims was not given and it was therefore in the expert's interests for his instructing party, UBB, to defeat the Council's claim and
• The Judge went on to find that the expert also failed to distinguish between advocating for UBB and providing independent opinion when giving his evidence.

Whilst the Judge declined to exclude the expert's evidence...