Civil proceedings: Expert evidence requirements “not optional extras”

14th March 2022

Walker Morris commercial dispute resolution specialists Lynsey Oakdene and Kathryn Vickers highlight a recent case which stresses the importance of complying with the court’s rules generally, and those on expert evidence specifically, and offer their practical advice.

Why is this case of interest?

The decision in R (Good Law Project Ltd) v Secretary of State for Health and Social Care) [1] is a cautionary reminder to all litigating parties that the courts take compliance with procedural rules very seriously. More specifically, the requirements in relation to expert evidence are not optional extras, only to be complied with by a litigant and their expert if the court states in a specific case that they are to apply. They apply in all cases. While this particular case concerned an application to adduce expert evidence in judicial review proceedings in relation to a procurement challenge, the lesson applies in relation to all types of claim.

What practical advice arises?

When taking any step in a dispute – whether pre-action, at the point of issuing proceedings or once the proceedings are on foot – ensure that you check and follow the requirements set out in the Civil Procedure Rules (CPR) (which include pre-action protocols) and consult any relevant Court Guide.

Remember that there may be different rules and time limits applicable to different types of claim. Failure to comply with rules and court orders can be devastating to a case. If you do make a mistake, take immediate steps to rectify it and seek appropriate relief from the court – do not delay. Unless there is a good reason for doing so, do not leave it to the last minute to take a procedural step.

In relation to expert evidence specifically, experts – and the lawyers instructing them – should ensure that they read and comply with the requirements set out in CPR Part 35 and the associated Practice Direction, including having regard to the guidance contained in the Guidance for the Instruction of Experts in Civil Claims 2014.

As the court reiterated in this case, experts owe an overriding duty to the court, above any duty that they owe to the parties instructing them. The basic and underlying theme to the use of experts is one of independence and fairness. An important component of that duty is that experts for both parties must have access to the same material. The expert’s report must contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based. Omitting ‘off-the-record’ instructions is not permitted.

The court referred to another recent case [2] in which the defendant’s expert evidence was excluded at trial, where one party’s experts had participated in numerous discussions with that party itself without solicitors being involved. One example of the “serious flaws” in the conduct of the experts was the free flow exchange of information between the experts and the party’s employees and in-house technical specialists, through extensive email exchanges, numerous telephone and video conferences and at site visits, apparently with no, or very little, oversight from the instructing solicitors.

What were the facts of this case?

Public interest group the Good Law Project brought judicial review proceedings to challenge the decision to award contracts to Abingdon Health for the manufacture and supply of rapid Covid-19 antibody tests. In this application, the Secretary of State sought to adduce expert evidence to address the allegation that sums granted to Abingdon comprised unlawful state aid.

While expert evidence is only rarely permitted in judicial review proceedings, in this case consideration of the economics of state aid was sufficiently technical that the evidence could, in principle, clear the hurdle of being reasonably required (permission of the court is required for expert evidence and the court has a duty to restrict it to that which is reasonably required to resolve the proceedings). However, the application was refused due to a widespread failure to observe the requirements of CPR Part 35.

At an earlier hearing, the court had expressly brought to the attention of the Secretary of State and his advisers the principle of identification of material relied upon by one expert, and its availability to the other party. That requirement had been wholly ignored in the expert’s report. For example, it referred extensively simply to “discussions” the expert had had with Abingdon and unnamed personnel in the Department of Health and Social Care (DHSC). There was a conclusion “based on data from the DHSC” but no details at all were provided of that material, the personnel from whom it came, or even a summary of what it was. These were “obvious deficiencies”.

The requirement to identify such material was then entirely circumvented and avoided in a later version of the report, despite the opportunity to put things right. Nowhere were the previous discussions properly identified, nor the material that was given to the expert provided. This approach was contrary to the rules and simply not acceptable. The failures in respect of expert evidence were neither isolated nor unimportant, nor was the court seeking to impose a “counsel of perfection” upon the Secretary of State’s expert.

How we can help

If you need any advice or assistance in relation to the issues raised in this briefing, or have other questions concerning dispute resolution options and strategy, please contact Lynsey, Kathryn or any member of the Dispute Resolution team.

[1] [2021] EWHC 2595 (TCC)

[2] Dana UK Axle Ltd v Freudenberg FST GmbH [2021] EWHC 1413 (TCC)