Avoiding own goals in UK litigation: the need for gatekeepers to do their job

In the recent case of Dana UK Axle Ltd (Dana) v Freudenberg FST GmbH (FST) the court excluded expert evidence from a trial. This is a relatively rare action for a court to take, so it is worth examining the reasons for that decision.

Background Facts

In Dana v FST, on the seventh day of trial, Joanna Smith J granted Dana’s application to exclude FST’s technical expert evidence following findings of a number of “serious and unexplained” [61] breaches of both a court order and the CPRs.

The facts of the claim are not highly relevant to the judgment. However, for context, the claim arose out of the alleged premature failure of pinion seals manufactured by FST for Dana.

Both parties were given permission to serve expert reports from three experts in the fields of engineering and materials/polymer science. FST served its reports late, however Dana indicated that they would not object to FST’s reports being admitted at trial provided that various alleged defects in the reports were remedied.

Consequently, the judge ordered at the Pre-Trial Review that FST could rely on its reports at trial provided that FST reserved them:

1. setting out full details of all materials provided to its experts by FST’s solicitors or by FST itself;
   
   
2. disclosing all documents produced by or provided to its experts during any site visits; and
   
   
3. identifying the source and details of the data and other information relied on in support of each of the reports (the Order).

FST served revised reports for two of its experts. However, Dana remained concerned regarding continued non-compliance and eventually applied for FST’s reports to be excluded entirely for breach of the Order and of the CPRs.

Judgment

The judge granted Dana’s application and in an excoriating judgment found, in breach of the Order, that:

• FST had failed to provide a list of documents which had been provided to its experts;
  
  
• there had been a free flow of information between FST and its experts in calls, emails and virtual meetings which, “most unfortunate[ly]” [32], had not been properly supervised or recorded by FST’s solicitors;
  
  
• FST’s experts had carried out a number of site visits without informing Dana’s experts or keeping any contemporaneous record and, indeed, which had been more frequent than had been disclosed in their reports (a situation the judge described as “entirely unacceptable” [44]); and
  
  
• one of FST’s experts had included a number of opinions in their reports either based upon verbal evidence from individuals at FST or upon data which they had not directly verified “a paradigm example of what can go wrong if an expert is left to obtain information direct from his clients without legal involvement” [56].

Obiter, the judge also found that in breach of the CPRs:

• FST’s experts were provided with directions and information which had not been properly disclosed in their reports and which had not been provided to Dana’s experts;
  
  
• FST were directly involved in the drafting of the experts’ joint statement. The TCC Guide makes it clear that solicitors must not be involved in the negotiating and drafting of the joint statement, and naturally the same prohibition also applies to parties; and
  
  
• the reports appeared to be directly influenced by FST, casting “very serious doubt on [one of the expert's] independence and impartiality” [82] and calling "into question the independence" [84] of each of the reports.

Accordingly, the Judge ordered that FST’s expert evidence be excluded from the trial.

What can we learn about managing expert evidence in litigation?

This decision serves as a salutary reminder that expert evidence is within the court’s discretion and is not an absolute right. Solicitors are required to make sure their clients and experts uphold both the spirit and letter of the CPRs, including by clearly informing them of their obligations and monitoring compliance with them. This will require solicitors to work proactively to ensure that there is an equality of arms between the parties and that any experts remain both impartial and independent.

The case also serves as a cautionary tale that solicitors must play a “gatekeeping role” [18] between clients and experts. This means they must have appropriate oversight and control of experts and a clear record of everything they see and do, including:

• what documents they have and have not seen and when,
  
  
• what specific documents an expert relies on in forming their opinions; and
  
  
• when and in what circumstances an expert has communicated with or attended upon their client (together with detailed notes of the same).