In the recent case of Dana UK AXLE Ltd v Freudenberg FST GmbH (2021) EWHC 1413 (TCC), the High Court rejected expert evidence during the trial because of serious breaches of the terms of a court order and the principles of CPR 35.
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The claim arose out of the alleged premature failure of pinion seals manufactured by the defendant (FST) and supplied to the claimant (Dana) during the period between September 2013 to February 2016. The seals were fitted by Dana, a manufacturer and supplier of automotive parts, onto vehicle rear axles which Dana then supplied to Jaguar Land Rover for installation into 9 different vehicle models.
The trial started on 5 May 2021 and the court heard from the parties’ witnesses of fact and from Dana’s three technical experts. Dana applied to exclude FST’s technical expert evidence.
In this matter, the two parties were allowed to serve expert evidence in Engineering. However, FST gave its expert evidence 8 days after the deadline and eventually applied for relief from sanctions. The other party did not object to FST being granted relief, but the court held that FST would be able to rely on their reports, provided that they come forward with a new version of the reports where the problems outlined by Dana in those reports, had been corrected and hence fully compliant with CPR 35.
Dana’s application was granted and hence excluded FST’s reports on the basis that there were several ‘serious and unexplained’ breaches of the PTR order.
The High Court also found that it was ‘entirely unacceptable’ that FST’s experts did site visits without informing Dana’s experts and did not even keep records. From the trial, it could easily de deduced that several site visits were made and they were not disclosed in the reports.
According to the court, the expert’s opinion seemed to have been directly influenced by FST. Hence, this called into question the independence of the reports and the extent to which they gave unbiased views and opinions.
The importance of expert evidence
The decision serves as a reminder that the admission of expert evidence is a matter for the court’s discretion. The rules put in place in regards to expert evidence are there to make sure that both sides are on the same level playing field. The decision taken in this case re-iterates that breaches of procedural rules will not be tolerated.
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Expert evidence is provided by an expert witness who has well recognised and authoritative experience, skill and knowledge in a specific field. The expert witness may be instructed, with the court’s permission, to give an authoritative opinion based on their expertise. The overriding duty of any expert witness is owed to the court or tribunal and not to the party instructing the expert. The expert’s duty is to provide unbiased and impartial independent evidence.
The rules governing expert evidence are found in CPR 35:
Experts – overriding duty to the court
(1) It is the duty of experts to help the court on matters within their expertise.
(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.CPR 35(3)
An expert witness may give evidence on, for example, technical or scientific matters, or specialist practice or procedure. They may give their opinion on specific matters in the dispute within their expertise. However, it is not the function of an expert witness to give their opinion on issues of law or fact which the judge or jury has to decide.
Do I need the court’s permission to call expert evidence?
Yes. The court’s permission to call expert evidence is always required as the court has a duty to restrict expert evidence to that which is necessary to resolve issues in the proceedings. When applying for expert evidence to be allowed, the parties must apply early in proceedings (otherwise the court may later refuse due to timetabling issues), identify the expert by name or by field of expertise, specify the issues that he will address and estimate the cost of the expert evidence.
If it grants permission, the court will limit the evidence to the named expert or field ordered, and may specify the issues that the expert should address. Oral expert evidence at trial may only be given with the court’s permission.
Court’s power to restrict expert evidence
(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.
(2) When parties apply for permission they must provide an estimate of the costs of the proposed expert evidence and identify –
(a) the field in which expert evidence is required and the issues which the expert evidence will address; and
(b) where practicable, the name of the proposed expert.
(3) If permission is granted it shall be in relation only to the expert named or the field identified under paragraph (2). The order granting permission may specify the issues which the expert evidence should address.CPR 35(4)
What is a single joint expert?
The court may order that expert evidence is to be given by a single joint expert, namely an expert who is instructed on behalf of both parties. However, this is not common in multi-track cases.
Parties may instruct another expert to assist them, but any evidence from that expert will not be admissible and the costs of instructing that expert will not be recoverable from the other side.
What is an expert report?
Expert evidence is usually given in the form of a written report, which must be the independent product of the expert. The expert’s overriding duty is to the court and not to the party that instructed him. Expert reports are often exchanged simultaneously. However, in some cases, expert reports may be exchanged sequentially.
Contents of report
(1) An expert’s report must comply with the requirements set out in Practice Direction 35.
(2) At the end of an expert’s report there must be a statement that the expert understands and has complied with their duty to the court.
(3) The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.CPR 35.10
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