Procedure — Expert — Surveyor — Civil Procedure Rules — Failure of expert to comply with court directions — Expert debarred from acting as expert witness — Consequential order that claim against third party failed — Whether appropriate for court to debar expert — Whether claim against third party should continue — Whether expert should be imposed on judge by consent of parties
In these proceedings, the claimant builder claimed
£8,674.89 plus VAT from the defendant for work done and materials supplied that
were certified by the defendant’s architect, the third party (under CPR, the
Part 20 party). Based upon schedules prepared by S, a building surveyor, the
defendant counterclaimed for £127,000 under various headings, including
defective work and delay in completion. In the course of the proceedings an
order was made for a meeting of experts and for the preparation and exchange of
a memorandum of matters agreed or disagreed by the experts. Following the
meeting of experts, and the preparation of a memorandum of agreement by the other
experts, S failed to adequately respond and a further order was made by the
county court judge requiring S to comply with the requirements of the practice
direction to Part 35 of the CPR by a specified date, failing which the
defendant would be debarred from calling S in the third party proceedings
against the defendant’s architect. S failed to comply with that order and the
judge made an order debarring S from acting as an expert witness in the
proceedings between the claimant and defendant and between the defendant and
the architect, although he could give evidence as to fact; he also dismissed
the third party proceedings. The defendant appealed. The claimant and defendant
meanwhile proposed a consent order enabling S to give expert evidence in the proceedings
between them, upon certain terms.
dismissed. The judge was entitled to make the order debarring S from acting as
an expert witness; he had demonstrated by his conduct that he had no conception
of the requirements placed upon an expert under the CPR. Part 35 of the CPR did
no more than reflect the position under a number of authorities, including The
Ikarian Reefer [1993] 2 EGLR 183, where the duties of an expert were
summarised. It was a mistake to regard S as being in a position to give
evidence as to fact, particularly as the defendant had appointed a new expert.
It would be wholly wrong to impose S as an expert upon the judge in accordance
with the proposed consent order. Under the CPR, the court has power to control
the evidence that is to be placed before the court. The claim against the
architect was properly dismissed. It would be wholly wrong, where the judge has
appropriately exercised his discretion in relation to the matter, for the
parties to override that discretion merely because the parties are content to
allow the matter to be dealt with otherwise in accordance with the proposed
consent order; S should not be allowed to give expert evidence in the
proceedings between the claimant and the defendant, as well as between the
defendant and the third party.
The following case is
referred to in this report.
National Justice Compania Naviera SA v Prudential Assurance Co Ltd, The Ikarian Reefer [1993] 2
Lloyd’s Rep 68; [1993] 2 EGLR 183; [1993] 37 EG 158
This was an appeal by the
defendant, RJ Gullis, from a decision of Judge Moseley QC in Cardiff County
Court, who had made an order in proceedings by the claimant, Edwin John
Stevens, against the defendant to which David Pile had been made a third party.
Andrew Keyser (instructed by Gatside Harding, of
Newport) appeared for the appellant; Neil Moody (instructed by Cameron McKenna)
represented the third party; the claimant did not appear and was not
represented.
Giving judgment, Lord Woolf MR said: This is an appeal by the defendant in
a building dispute against two orders of Judge Moseley QC dated 4 and 7 May
1999. It requires the court to consider the Civil Procedure Rules (CPR) Part 35
and the practice direction thereto. It is also necessary to consider whether
effect should be given to an agreement to allow part of the appeal by consent.
Background
For the purposes of the present judgment, the
background can be conveniently taken from the skeleton argument prepared by Mr
Andrew Keyser on behalf of the defendant. The claimant is a builder. His claim
was for the sum of £8,674.89 plus VAT for work done and materials supplied to
the defendant, which were certified by the defendant’s architect (the Part 20
party) in connection with the alteration and improvement to the defendant’s
premises at Bargoed in Mid Glamorgan.
The work was carried out in 1992/1993. The work
was ‘arguably’ (as expressed by the defendant) to be carried out in accordance
with the standard form of JCT Building Contract 1980 Edition Private without
Quantities. The contract was neither signed nor dated. The architect who
supervised the work issued instructions and certified practical completion as
24
February 1995. The total value of the work certified was over £122,000.
The defendant counterclaims a sum in excess of
£127,000 under various heads, including defective work, incomplete work and
delay in completion.
In May 1995 proceedings were issued at Pontypool
County Court. They were subsequently transferred to the High Court. In the
first half of 1997 a Mr Isaac was instructed on behalf of the defendant. He
prepared schedules supporting the defendant’s counterclaim. On 31
1997 a reamended defence was served and a Part 20 notice was issued against the
architect based on the schedules of Mr Isaac.
On 29 April 1998 an order was made by Judge Graham
Jones:
1. giving leave to both the claimant and the
defendant to produce evidence from two expert witnesses (a structural engineer
and a building surveyor);
2. requiring statements of lay witnesses to be
exchanged not later than 22 July 1998;
3. requiring the defendant to serve upon the
architect and on the builder a Scott schedule not later than 29
4. requiring the builder and the architect to
serve their replies to the Scott schedule not later than 31 July 1998; and that
there be a joint meeting of experts and like disciplines instructed on behalf
of the parties, the last meeting to be held not later than 1 September 1998,
such meeting to be held with a view to identifying the areas of agreement
and/or disagreement;
5. that the experts in like discipline should
prepare a joint memorandum of matters agreed or disagreed, the same to be filed
not later than 15 September 1998;
6. that there should be an exchange of experts’
reports completed not later than 30 September 1998, and no expert’s report,
which had not been disclosed, should be permitted to be given in evidence at
the trial; and
7. that the matter should be set down for hearing
at Cardiff County Court not later than September 1998.
That order was followed by a further order in the
third party proceedings of 29 April 1998, which required: the experts to meet
by 1
result of that meeting by 15 September 1998; and that the experts exchange
reports by 30 September 1998. There were problems with regard to discovery and
an order was made against the defendant that discovery should be given in the
third party proceedings by 18
18 September. The defendant did not comply with that order. An order was also
given at that time with regard to the exchange of witness statements by
2
There were difficulties in arranging the meeting
of the experts. A further order was made on 9 October 1998, which required,
among other things, that there should be a joint meeting of experts but that
the meeting should not now be held later than 13 November 1998. New dates were
given: for the exchange of the joint memorandum, by 27
the exchange of expert reports, by 15 January 1999; and for witness statements,
to which I need not refer specifically.
On 11 November 1998 an experts’ meeting took
place. Subsequent to that meeting, a memorandum of the agreement was sent by
the other experts to Mr Isaac, who, despite numerous reminders, never responded
satisfactorily to the drawing up of the memorandum of agreement. On 10 March
1999 there was a further application to the judge, which resulted in an order
of 26
of the practice direction to Part 35:
1. The defendant’s expert Mr SJ Isaac shall by
4.00pm on Monday 12 April 1999 set out in writing the details referred to in
paragraph 12 in CPR Part 35, a copy of which is annexed to this order.
2. In default of compliance with paragraph 1, the
defendant will be debarred from calling Mr SJ Isaac as an expert witness in the
third party proceedings.
Attached to the order was a copy of the practice
direction to Part 35 in relation to experts and assessors. When the order and
the practice direction are read together, it is immediately clear that there is
a clerical error in para 1 of the order that, instead of referring to CPR Part
35, it should refer to the practice direction to CPR Part 35, and, instead of
referring to para 12, it should refer to para 1.2.
The practice direction sets out various important
requirements in relation to experts’ reports. It requires the expert report to
be addressed to the court and not to a party from whom the expert has received
instructions. In para 1.2 it requires the expert’s report to:
(1) give details of the expert’s qualifications,
(2) give details of any literature or other
material which the expert has relied on in making the report,
(3) say who carried out any test or experiment which
the expert has used for the report and whether or not the test or experiment
has been carried out under the expert’s supervision,
(4) give the qualifications of the person who
carried out any test or experiment, and
(5) where there is a range of opinion on the
matters dealt with in the report
(i) summarise the range of opinion, and
(ii) give reasons for his own opinion,
(6) contain a summary of the conclusions reached,
(7) contain a statement that the expert
understands his duty to the court and has complied with that duty (rule
35.10(2)), and
(8) contain a statement setting out the substance
of all material instructions (whether written or oral). The statement should
summarise the facts and instructions given to the expert which are material to
the opinions expressed in the report or upon which those opinions are based
(rule 35.10(3)).
The order that was made in relation to Mr Isaac by
the judge on that occasion was not complied with. As a result, the defendant
was debarred from calling Mr Isaac as an expert witness unless the court
otherwise ordered. In view of Mr Isaac’s failure to comply with the order, the
matter came before the judge again on 4 May 1999 when he made the first of the
orders that are the subject of the appeal. On that occasion the judge gave
three different judgments to which I shall refer.
The judge had before him a letter written by Mr
Isaac headed ‘SI Architecture’ indicating that Mr Isaac was a Mr Steve Isaac
BSc (Hons) Building Surveying. It stated in para 1.2.1:
Relevant qualification is a BSc (Hons) Building
Surveying. However, I have been involved with Renovation and disabled grants in
a professional capacity for over fifteen years, having been an associate of a
Chartered Surveyor for six of those years, undertaking architectural designs,
specification of remedial building rectification works, drawings, preparation
of Bills of Quantities, site supervision, defect reports etc.
Although I am not a Qualified nor a practising
Architect, I have extensive experience in architectural design, having taught
Computer-aided design and AutoCAD AEC (which is an architectural design
package) at a number of colleges in South Wales. I have also prepared
architectural drawings for large prestigious companies. I am able to, if
required, submit copies of drawings so that they can be assessed for their
architectural credibility.
The letter concludes:
I submitted all reports to the best of my
ability, and each report was a true and accurate account of the condition of
the building at the time of the inspections.
Views of the judge
When the parties came before the judge on 4 May
1999, the judge was aware that a trial date had been fixed for the hearing of
the case on 7 June 1999, with a time estimate of eight days. In his first
judgment, the judge indicated that it was the first time that he had heard an
application in the case after 26 April, and that he should make it clear that
he had decided that the CPR were to apply to the case. He indicated that he
regarded the error in the order made on 26 March 1999 as immaterial. That
position is accepted by Mr Keyser. The judge said that it seemed quite clear to
him that Mr Isaac had not complied with the order, in particular with para
1.2(7) and 1.2(8). He drew attention to the last sentence in the letter that Mr
Isaac had written, but said:
However, that comes nowhere near complying with
para 1.2(7).
With regard to para 1.2(8) of the practice
direction, the judge went on to say:
Mr Isaac has not set out the substance of his
instructions. That is of particular concern in the present case because of the
suspicions of the [architect] that Mr
directly from the defendant.
Having set out those matters, the judge went on to
say that the next issue to be considered was whether relief should be granted
under the CPR Part 3.8. That part enables a default order, such as was made in
this case, to be set aside in specified circumstances. Part 3.8(1) says:
Where a party has failed to comply with a rule,
practice direction or court order, any sanction for failure to comply imposed
by the rule, practice direction or court order has effect unless the party in
default applies for and obtains relief from the sanction.
There was no application for relief under that
part before the judge, but the judge disregarded that lapse. He said that,
having considered the merits and having also considered Part 3.9 and the
detailed matters there mentioned, he had come to the conclusion that
Mr
explained that, as far as he was concerned, Mr Isaac’s evidence was the only
expert evidence that the defendant intended to adduce. He pointed out that that
evidence was not directed to the issue of professional negligence, which is
alleged against the architect, but deals with the technicality of the
deficiencies in the building, which underlie the allegation of professional
negligence. The judge said:
It is absolutely essential, if this case is going
to be heard in a month’s time, that there be full compliance by the expert
witness for the defendant with the requirements of the new rules, and with the
requirement of para 1 of the order.
(In relation to which Mr Isaac was in default.)
He added:
Is it right in the circumstances that the
defendant should be granted relief against the order, notwithstanding the
non-compliance by Mr
He concluded:
In my view, it is in the interests of the
administration of justice that Mr Isaac should not give his evidence in the
circumstances that I have outlined. It is essential in a complicated case such
as this that the court should have a competent expert dealing with the matters
that are in issue between the defendant and third party. Mr Isaac, not having
apparently understood his duty to the court and not having set out in his
report that he understands it, is, in my view, a person whose evidence I should
not encourage in the administration of justice.
He continued:
I deduce from the letter of Mr Isaac that he does
not quite appreciate what his functions are as an expert witness.
The judge added, quoting from the requirement of
the CPR Part 3.8, as to whether there is good explanation for the failure,
that:
There is no evidence that provided any excuse for
failure of the compliance with the requirements of Part 3.8.
He then proceeded to go through the requirements
of Part 3.9, and added:
It appears that Mr Isaac is not co-operating with
the other experts in the case. He apparently came to the conclusion that,
because he disagreed with their draft, no further steps needed to be taken and
the appropriate step was merely not to sign it. The orders of the court have
consequently been so much wasted paper because of Mr Isaac’s non-compliance, I
ought to take that into account under CPR 3.9(1)(e) in deciding whether or not
to grant relief.
In those circumstances, I ought to make an order
that Mr Isaac be debarred from acting as an expert witness in the case; so the
third party succeeds.
Later, having made that order with regard to the
third party proceedings, he made a similar order about Mr
to the proceedings between the claimant and the defendant.
Having given that judgment, the position between
the defendant and the third party was that they had no expert evidence
available in the proceedings against the architect. The judge therefore gave a
separate judgment dismissing the third party proceedings.
Basis of the appeal
In his notice of appeal, the defendant advances
two separate contentions with regard to the orders made in the proceedings
against the architect. It is submitted: (i)
this case to disbar the defendant’s then expert from giving evidence against
the architect; and (ii) that, in any event, the judge was wrong to come to the
conclusion that because Mr Isaac was debarred from giving evidence, the claim
against the architect should not be allowed to continue.
Responsibilities of
experts
Taking those two points in turn, I have come to
the conclusion that there can be no doubt whatsoever in this case that the
judge was perfectly entitled to make the orders that he did. First, with regard
to Mr
had no conception of the requirements placed upon an expert under the CPR. The
CPR only came into force on 26 April 1999. But, as I have already indicated, in
the order of 26 March 1999 reference had been made to the practice direction to
Part 35, which was to come into force on 26 April 1999, the relevant part of
which had specifically been drawn to the attention of the defendant by that
order. The practice direction did no more than reflect the position as it had
been well enunciated in the authorities prior to the CPR coming into force.
The position was made clear in numerous
authorities, but, in particular, in the decision of Cresswell J in National
Justice Compania Naviera SA v Prudential Assurance Co Ltd, The
Ikarian Reefer [1993] 2 Lloyd’s Rep 68*. In different words, Cresswell J
summarised the duties of an expert. There can be no excuse, based upon the fact
that the CPR only came into force on 26 April 1999, for the fact that
Mr
experts. Those requirements are underlined by the CPR. It is now clear from the
rules that, in addition to the duty that an expert owes to a party, he is also
under a duty to the court.
*Editor’s note: Also reported at [1993] 2 EGLR
183
The series of orders made by the judge, to which I
have referred, were designed to bring the present proceedings forward to a
state where they could be conveniently tried at the proposed date in June 1999.
If those orders had been followed, it should have been possible to identify
clearly and precisely what the real issues between the parties were. Because of
the way in which Mr Isaac responded to the experts’ meeting, that was not
possible. The requirements of the practice direction that an expert understands
his responsibilities, and is required to give details of his qualifications and
the other matters set out in para
intended to focus the mind of the expert on his responsibilities in order that
the litigation may progress in accordance with the overriding principles
contained in Part 1 of the CPR.
Mr Isaac had demonstrated that he had no
conception of those requirements and I am quite satisfied that the judge had no
alternative but to take the action that he did, notwithstanding the fact that
the CPR had only recently come into force, and that the consequences to the
defendant of the course that was taken were draconian and could deprive him of
a claim that he might otherwise have against the architect.
Viability of the
claim against the architect
I was concerned as to whether, even without the
benefit of Mr
still succeed, albeit that the claim was primarily one of professional
negligence. However, if that was a possibility, then the subsequent history of
these proceedings makes it clear that the judge’s view that the proceedings
against the architect should stop there and then was undoubtedly right.
The date that had been fixed for the hearing of
the proceedings in June had to be vacated, which, it may well be, caused no
inconvenience to the court. I therefore do not attach as much significance to
that possibility as I normally would. It has become apparent, because of the
defects in the schedule prepared by Mr
defendant, that the proceedings between the claimant and the defendant are
almost inevitably going to have to be entirely recast. Although the defendant
was appealing the judge’s decision that Mr
give expert evidence in the proceedings between the builder and the defendant,
wisely he has consulted another expert. The other expert has produced a report
that supports the defendant’s contention that he has overpaid the builder
and that there is a sum therefore due to him on his counterclaim. Instead of
the sum being well in excess of £100,000, this expert takes a different view
from that of Mr
£10,000.
The judge had given leave for Mr Isaac to give
evidence as to fact. Clearly, Mr Isaac could not give evidence as to fact at
the same time as the defendant was relying upon his new expert. Accordingly,
the judge has allowed the defendant to have a period of grace, following the
outcome of this appeal, to decide whether he wishes to rely upon the new expert
or Mr Isaac’s evidence as to fact in relation to the proceedings between the
builder and the defendant.
While I understand the difficulty the judge had in
dealing with the position of the new expert, I consider it was a mistake to
regard Mr
although he could not give evidence as an expert. In this connection I draw
attention to the period that had elapsed before Mr Isaac first inspected the
site of the building work and also draw attention to the fact that other work
had been carried out at the building site after the claimant withdrew from the
contract. In my judgment, it would be extraordinarily difficult, if not
impossible, for Mr Isaac to give evidence as to fact without giving evidence as
an expert. In any event, Mr Isaac was so discredited that it would be pointless
for his evidence to be included on the hearing of the claim between the builder
and the defendant. The court now has power to control evidence, even evidence
as to fact, which is to be given in the course of the proceedings. In my view,
it would have been more appropriate for the judge to have refused permission
for Mr Isaac to give evidence as to fact.
As to the claim against the architect, if that
claim were to proceed now, as a result of this court intervening and allowing
the defendant’s appeal in relation to that order of the judge, the position
would be that the whole claim would have to be recast and reframed. Mr Neil
Moody, on behalf of the architect, submits that the state of the proceedings
against his client is such that it would be wholly inappropriate for the claim
to be resurrected. I agree, and, as to that part of the appeal, I would also
dismiss the contentions of the defendant.
That leaves the appeal by the defendant to the
order that was made by Judge Moseley debarring Mr Isaac from giving evidence as
an expert against the builder. The builder and the defendant have come to terms
whereby they invite the court to make an order by consent that the decision of
Judge Moseley should be allowed in these terms:
1. That the defendant be allowed to call Mr SJ
Isaac as an expert witness at the trial of the action between the claimant and
defendant if and only if Mr Isaac by 4pm on 10/8/99 sets out in writing all the
matters referred to in para 1.2 of the practice direction supplemental to Part
35 of the Civil Procedure Rules and including in subpara 1.2(1) of the
direction whether he has a BSc qualification and where he obtained that
qualification and that in default of Mr
order he be debarred from being called as an expert witness in the proceedings
between the claimant and the defendant.
Proposal that the
appeal against the builder be allowed by consent
Although the court has not required the builder to
be represented on this appeal, I am quite satisfied that it would be wrong for
the court to allow the appeal in accordance with the proposed consent order. I
do not know whether or not Mr Isaac would provide the details proposed in the
consent order by 10 August 1999. Whether he was prepared to do so or not, I
consider that it would be wholly wrong to impose Mr Isaac as an expert upon the
judge. The judge has very properly indicated his view that Mr Isaac is not an
appropriate person to give expert evidence in a court having regard to his
conduct to which I have referred. That being so, it would be quite wrong for
this court, even by consent, to interfere with the judge’s judgment. Mr Isaac
lacks the basic knowledge of the responsibilities that an expert has when
giving evidence.
Under the CPR, the court has power, as I have
indicated, to control the evidence that is to be placed before the court. It
would be wholly wrong, where a judge has appropriately exercised his discretion
in relation to that matter, for the parties to override that discretion merely
because the parties are content to allow the matter to be dealt with otherwise.
The order of the judge in the proceedings between the claimant/builder and the
defendant should stand and Mr Isaac should not be allowed to give expert
evidence.
For the reasons I have indicated, I would vary the
order of the judge to make it clear that Mr Isaac should not be allowed to give
evidence of fact. Subject to that qualification, I would dismiss this appeal.
BROOKE and ROBERT WALKER LJJ agreed and did not add anything.
Appeal dismissed.
