Edwards v Bruce & Hyslop (Brucast) Ltd

This is an application for permission to appeal from the order of 27^th March 2009, made by His Honour Judge MacKay, sitting as a specialist TCC judge in the Liverpool County Court. By that order, he gave the claimant (Brucast, or B & H as they are sometimes referred to) permission to rely on its own expert’s report, produced by Mr Potter, having previously ordered that there be only a single joint expert, a Mr Brotherhood. For the purposes of this application, it has been necessary to undertake a detailed review of this case generally, and the events relating to the expert evidence in particular. That review has led me to conclude that, for reasons which I shall explain, aspects of this litigation appear to have more in common with the early Victorian era than 21^st Century civil proceedings.

The background is this. The defendant owns a large house, a listed building, in Rock Park, Liverpool (“the property”). One of the distinguishing features of the property is its beautiful wrought iron balconies and balustrades. In 2004, the defendant engaged the claimant to manufacture, supply and install three replacement balconies. There was a subsequent dispute about the quality of the claimant’s work and, in 2006, the parties agreed to refer that dispute to an expert architect, Mr Brotherhood.

Mr Brotherhood’s first report, dated 14^th June 2006, reached conclusions which were largely in favour of the claimant contractor. Amongst other things, Mr Brotherhood said:

“Having viewed some original balustrading members, both at number 3 and number 4 Park Road, and at B & H, viewed the resin moulds and viewed examples of the balustrading castings, including the main panels, smaller vertical panels and horizontal panels, together with the balustrading handrailing, I consider the casting work is of good quality.

I consider the costing work is to an acceptable standard.

I would be prepared to attend to view the works being undertaken on site when the reinstatement work commences to enable me to view the work being undertaken. Provided I am satisfied with the work which has been undertaken I am prepared to certify that the works have been completed and installed satisfactorily.

I consider when the works are complete the castings, as provided, will be an improvement on the condition of the original balustrading castings as viewed. I confirm the completed balustrading will not comply with current Building Regulation legislation.”

Notwithstanding the content of that report, a dispute remained as to sums allegedly due from the defendant to the claimant pursuant to the contract. On 27^th October 2006 the claimant commenced proceedings for the sum said to be due, £13,729.36, in the Northampton County Court. The defendants served a defence and counterclaim which sought a refund of £7,000, together with unparticularised damages for defective work. Somewhat curiously, both the defence and counterclaim and the reply sought to rely on Mr Brotherhood’s report of 14^th June 2006.

Late in 2006, at the parties’ request, the case was transferred to Liverpool County Court. This led to substantial amendments to both sides’ pleadings, although the sums at stake remained and remain extremely modest by the standards of the TCC. The claimant’s claim is now said to be in the order of £15,000, whilst the highest figure ascribed to the counterclaim in the revamped pleadings is £60,000. Both these figures are exclusive of interest. I am told that, to date, the claimant’s total costs are approximately £60,000 and that the defendant’s total costs are also about £60,000. Accordingly the parties have already spent far in excess of the sums in dispute on the costs of these proceedings.

On 21^st September 2007, Judge MacKay ordered that Mr Brotherhood would be the single joint expert in the case. This was, if I may say so, a very sensible order, given that Mr Brotherhood had already produced a joint report on which both sides had purported to rely in their pleadings, and he was therefore entirely familiar with the issues. It is my understanding that both sides agreed to an order in those terms.

There were significant delays by the parties in sending Mr Brotherhood their questions for the purposes of a court expert’s report and, as a result, his second report was not produced until 6^th August 2008, nearly a whole year later. The contents of the second report came as something of a surprise to the claimant. Now, in a much lengthier report, Mr Brotherhood said in clear terms that, in his view, the claimant’s materials and workmanship were of an unacceptable standard. It is unnecessary to set out in detail all the relevant parts of this extremely long report, running as it does to 36 pages with appendices. However, the following extracts give the necessary flavour:

“6.3.1

Are the castings produced by B & H fit for purpose in engineering terms?

… I consider in engineering terms the problems of how the extension of the lugs might be achieved satisfactorily is not resolved.

I consider in engineering terms that the proposal to extend the castings by attaching another casting to them is not acceptable if stainless steel is used and the necessity to do so would not have occurred if consideration of this matter had been addressed prior to the casting work being undertaken.

I therefore consider the new balustrading panels as cast are not fully acceptable in engineering terms because of the problems associated with the resolution of how the lugs, which are too short, might be extended.

6.3.2

Are the castings produced by B & H of satisfactory quality?

… I consider in terms of quality the fact that the fixing lugs are shorter than the original fixing lugs and the necessity to extend them is not satisfactory in quality terms. I consider it is not possible to satisfactorily form the curved shape to the lugs on the inside of the panel or achieve the form of the original lug lozenge shape.

In my opinion the new large and small panels Brucast have provided do not achieve the quality which befits this project.

7.

Are the castings now able to be installed?

… I confirm in my opinion that the castings which Brucast have prepared are able to be installed but should not be installed as there are many issues to resolve including obtaining listed building consent for the material changes.”

At some time thereafter, the claimant’s solicitors learnt that, unbeknownst to them, the defendant’s solicitors had been in contact with Mr Brotherhood during the period between his first and his second reports. The precise nature, scope and extent of those clandestine communications is, even know, unknown to the claimant or to the court. Copies of all relevant correspondence have been requested but never provided.

The claimant obtained a report from another expert, Mr Simon Potter, and sought the court’s permission to rely on that report. That was the application that was granted by Judge McKay on 27^th March 2009. During the course of a careful judgment, having set out the law, the judge went on to say this:

“12.

…What is said by the claimants is that the defendant’s solicitors have, in fact, robbed the expert of his impartiality. Not by any conduct of the expert but in having unfettered access to that expert and, most unusually, that expert has put in a report which is substantially different from the earlier pre-litigation report that he had put in after he had been subjected to the access of the defendant’s solicitor…

13.

…This seems to me to be a most unusual and unsatisfactory situation. It is unsatisfactory because it is a modest claim. It is a modest claim and the costs appertaining to such a claim have been exceeded many times by now.

14.

…What seems to me to be important is that if the claimants are not allowed to have their own expert to say things, as it were, for them, they will be faced with an expert who started out as a joint expert and who put in a report generally in their favour, and then after inappropriate access by the defendant’s solicitor that expert changed his mind, put in a report pro the defendant and they will be faced with the possibility of attempting in a trial to argue points which are not capable of being argued because the expert evidence is not in their favour.

15.

…It seems to me that this is the point of what Neuberger J said [in a case called Cosgrove, referred to below] about the justice of the parties. It seems to me that the bar for the claimant is very high in attempting to argue that they should be permitted their own expert, but if I fail to allow them to call their own expert the trial of this case would become a mockery and the position would become untenable.

16.

…In fact, I asked counsel for the defendant whether he had any experience or knowledge of a similar case and he told me that he did not, and it seems to me that that must be right. I cannot think of a single case where there has been such a large discrepancy between the evidence at first given and the second now given by the joint expert. And when Neuberger J said that “the overall justice to the parties in the context of the litigation”, this was the sort of situation that he had in mind. It is with reluctance that I do it, but I do do it. I give the claimant permission to rely on his own expert.”

It is, of course, that decision in respect of which the appellant/defendant now seeks permission to appeal. I propose to address that application in this way. First I set out what I consider to be the relevant principles of law governing the role of the single joint expert and the scope for challenging, by way of appeal, a case management decision of this sort. I then go on to address the grounds of appeal which can be found scattered across a number of documents and draft documents advanced by the defendant.

Single Joint Experts

In cases where a modest sum is involved and there already is a joint expert’s report, “it may be said… that it would be disproportionate to obtain a second report in any circumstances. At most what should be allowed is merely to put a question to the expert who has already provided a report”: see Lord Woolf, MR in Daniels v Walker [2001] WLR 1382.

In cases where one party seeks permission, late in the day, to rely on fresh expert evidence, the relevant guidance is that set out by Neuberger J (as he then was) in Cosgrove v Pattison [2001] CP Rep 68. He said:

“In my judgment, although it would be wrong to pretend that this is an exhaustive list, the factors to be taken into account when considering an application to permit another further expert to be called are these. First, the nature of the issue or issues; secondly, the number of issues between the parties; thirdly, the reason the new expert is wanted; fourthly, the amount at stake, and if it is not purely money, the nature of the issues at stake and their importance; fifthly, the effect of permitting one party to call further expert evidence on the conduct of the trial; sixthly, the delay, if any, in making the application; seventhly, any delay that the instructing and calling of the new expert will cause; eighthly, any other special features of the case; and finally, and in a sense all embracing, the overall justice to the parties in the context of the litigation.”

It is that passage to which Judge MacKay made a number of references in his judgment in this case (see paragraph 9 above).

Separate/Secret Communications

As to the position where one party has, or endeavours to have, separate or secret dealings with a single joint expert, from which the other party is excluded, the Court of Appeal decision in Peet v Mid Kent Health Care NHS Trust [2002] 3 All ER 688 could not be clearer: such separate dealings must never happen. The court held that, where there was a single joint expert, it was not permissible for one party to have a conference with the expert in the absence of the other party without the latter’s prior written consent. Simon Brown LJ (as then was) expressed it in this way:

“32.

When, if at all, should one party without the consent of the other party be permitted to have sole access to a single joint expert, i.e., an expert instructed and retained by both parties? In common with Lord Woolf, I believe that the answer to this question must be an unequivocal ‘Never’…

34.

The good sense of this is surely plain. There can be no point in a unilateral meeting or conference unless what transpires between the party enjoying sole access and the expert is, at least in part, intended to be hidden from the expert’s other client. What is to be hidden will necessarily be either the information which the party enjoying access is giving the expert i.e. part of the expert’s instructions, or the expert’s view expressed in the light of that information, or more likely, both.

35.

The hiding of such material seems to me necessarily inconsistent with the very concept of a jointly instructed expert owing, as such an expert does, an equal duty of openness and confidence to both parties, besides his overriding duty to the court. That, in short, is the fundamental objection in principle to what the claimant seeks to achieve by this appeal.”

Case Management Decisions Generally

Finally, on the issue as to the proper exercise of my powers on this application for permission to appeal, arising as it does out of a case management decision by Judge MacKay, I refer to the Court of Appeal decision in Wallbrook Trustee (Jersey) Ltd & Others v Fattal & Others [2008] EWCA Civ 427 where at paragraph 33, Lawrence Collins LJ, as he then was, said this:

“I can deal with the contentions on the substance of the appeal shortly. These were case management decisions. I do not need to cite authority for the obvious proposition that an appellate court should not interfere with case management decisions by a judge who has applied the correct principles and who has taken into account matters which should be taken into account and left out of account matters which are irrelevant, unless the court is satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.”

With those principles in mind I turn to address the detail of the application for permission to appeal. I do so by reference to my own synthesis of the various arguments advanced by Mr Pearson on behalf of the appellant. I have sought, I hope, to focus on what ultimately I consider to be relatively short issues.

The Nature and Effect of the Order Made

The first complaint about the order is that it was made contrary to the usual position adopted by courts in cases of modest value, as outlined in Daniels v Walker, to the effect that the right course in such circumstances is for there to be one single joint expert. The defendant complains that the judge gave insufficient weight to this, and to the fact that any other order would increase the costs out of all proportion to the sums in dispute.

I accept that the order that was made was unusual, in the sense that, in a case like this, the court’s strong preference is for a single joint expert. But it is not correct to say that the judge was giving insufficient weight to or ignoring the effect that his order would have. Indeed, it seems to me that the judge was painfully aware of this, because he expresses plainly his reluctance to make the order sought in a case of such modest value. However, he concluded that, for the reasons set out in his judgment, it was the right thing to do.

Moreover it seems to me it cannot be said that the order by itself would increase the costs out of all proportion to the sums in dispute. The costs have already been allowed to get to a figure that is out of all proportion to the sums in issue, and the decision to allow in Mr Potter’s evidence will, as I shall explain later, make precious little difference to the cost or length of the trial provided that there is the necessary co-operation between the experts. Indeed, it may actually reduce those costs.

The real question raised by this application is whether the judge was wrong, despite the generous width to be permitted to a judge exercising his discretion on case management decisions, to make an order allowing the claimant to rely on fresh expert evidence at this late stage, in all the circumstances of this case. It seems to me that this issue depends on the effect of the secret communications between the defendant’s solicitor and Mr Brotherhood. It was that point which was at the forefront of the judge’s judgment. I therefore turn to address that critical issue.

Issue 2: The Significance of the Secret Communications

The evidence concerning the detail of the communications between the defendant’s solicitor, Mr Jones, and Mr Brotherhood, is wholly unsatisfactory, a point I hope I have fairly made plain during the course of this hearing. The position is this:

In the evidence before Judge McKay at paragraph 6 of his statement Mr Jones said:

In his written skeleton for the hearing on 27^th March, counsel then instructed on behalf of the defendant said:

In his oral submissions, counsel then appearing for the defendant said to Judge McKay:

On 20^th August 2009, in a letter to Mr Brotherhood, the claimant’s solicitor sought copies of the correspondence between Mr Brotherhood and the defendant’s solicitor. In his reply of 3^rd September 2009, in a letter that was copied to the defendant’s solicitor, Mr Jones, Mr Brotherhood said this:

“We have received your letter of 20^th August in which you have requested past copies of correspondence between the defendant’s solicitors and ourselves.

It does seem to me that this request should be put to Mr Jones and not ourselves.

We answered your questions following our report and submitted our invoice to your client relating to our costs in that regard on 22^nd April 2009, in the sum of £1,739.58 which, despite two reminders, remains unpaid and we can see no further reason why we should undertake any further work whilst our account is outstanding.”

No response to that request was therefore made by Mr Brotherhood, and Mr Couser told me that his instructions were that there had also been no response from Mr Jones. Mr Pearson’s instructions from Mr Jones confirmed that this request had not been met, apparently on the basis that the letter was written by Mr Brotherhood in answer to the claimant’s solicitor’s request, and that no separate request had ever been made directly to Mr Jones. Speaking frankly, it is precisely this lack of co-operation which explains why the parties find themselves now in such a parlous position.

On the basis of this unsatisfactory and limited information, applying the principles in Peet v Mid Kent Health Care NHS Trust [2002] All ER 688 Judge MacKay was obliged to conclude that the secret communications created what he called “a most unusual and unsatisfactory situation” and that, in consequence, the usual position of a single joint expert in a case of this sort was no longer tenable. It is, in my judgment, impossible to fault that conclusion. First it was a case management decision which, by reference to the principles set out in Wallbrook Trustee, I simply could not disturb. Secondly, even if it was appropriate for me to decide the point afresh, I would reach precisely the same decision as Judge MacKay.

Put shortly, the existence of the secret communications has tainted the independence of Mr Brotherhood’s second report. In complete disregard for the normal rules of practice and procedure, Mr Jones, the defendant’s solicitor, has had private dealings with Mr Brotherhood, which even now have not been fully detailed. No one can say with certainty what effect those dealings might have had on Mr Brotherhood’s views. However, everybody can see their potential effect, simply by comparing the first and the second versions of the report. In those circumstances, the claimant is plainly entitled to adduce its own expert evidence, because any other result would be manifestly unjust.

In addition to the obligations owed to the parties, a single joint expert owes an overriding duty to the court to give advice on the issues, independent of the interests of the parties. He is in a position of considerable importance. Absent any legal issues, in a dispute like this, his opinions and conclusions might be determinative of the case as a whole. He can no more have communications with just one party about the substance of his report, in the absence of the other side, than a judge can have a conversation on the telephone with one party, and not the other, about the strengths and weaknesses of that party’s case.

I should deal with a related point. The amended grounds of appeal contend that:

“The learned judge did not find that JB’s integrity had been impaired by what he called ‘inappropriate’ access by the defendant’s solicitor. So the judge’s decision to grant the order sought by the claimant must have been designed to redress a sense of grievance which may have been perceived by the claimant. The court could not fairly have sought to redress that sense of grievance by allowing the claimant’s application…”

It seems to me that this is not a fair summary of what Judge MacKay said or did. The access was not merely ‘inappropriate’, that being the adjective used by counsel then instructed by the defendant. The access was contrary to the rules; it was unjustifiable and it tainted the independence of Mr Brotherhood. Moreover, the judgment makes clear that Judge MacKay was not in the least bit interested in ‘redressing a sense of grievance’ as the defendant calls it. What he cared about, quite properly, was the overall justice of the situation, and having considered that aspect of the application, he made what seems to me to have been the only appropriate order in the circumstances.

On the wilder shores of the communications issue is what I can only fairly describe as an extraordinarily bad point raised by the defendant about the claimant’s solicitor’s alleged conduct, which goes something like this:

In a letter of 2^nd October 2008 dealing with Mr Brotherhood’s request for his fees the claimant’s solicitor had said:

This letter, so it is said by the defendant, amounted to “a threat to Mr Brotherhood which attempted to confer on him a financial interest in the judge’s decision in relation to his two reports.”

In addition, it was said that the claimant’s solicitor, Mr Collins, had deliberately deceived Mr Jones into not reading this document, even though it was in Mr Jones’ possession, which was why it was not referred to Judge MacKay at the original hearing.

Both the letter and the alleged deception amounted to “serious inappropriate conduct” on the part of Mr Collins and that, in consequence, it would be unfair for the claimant to rely on the defendant’s solicitor’s conduct in obtaining leave for a second expert.

Ii seems to me that this argument fails at every level. Although I allowed the defendant to refer to the letter of 2^nd October 2008, even though it was not before Judge MacKay, I regard the letter as a perfectly proper letter for a solicitor to have written to a joint expert whose independence has been called into question by his own conduct, and who has radically altered his views. It was obviously not a threat, whether as alleged by the defendant’s solicitor or at all. Neither did it amount to improper conduct. And I have to say that the allegation that, in a way that is tortuous even by the standards of this case, Mr Collins somehow deceived Mr Jones into not reading a letter, of which he had a copy, is simply laughable. Furthermore, beyond some vague notion that, if there was disreputable conduct on the part of the claimant’s solicitor, two wrongs might make a right and the order should be rescinded, the relevance of any of this to the point in issue completely eluded me. In my judgment, as I said to Mr Pearson, this is a point that should never have been raised.

Issue 3: Without Prejudice Meetings

The final point raised by the defendant about the expert evidence is that the judge should have first ordered that Mr Potter meet Mr Brotherhood and that any question of Mr Potter being an expert would have to wait until after that without prejudice meeting. It is said that that is what Lord Woolf had in mind in his judgment in Daniels v Walker. I do not accept that. It seems to me that Daniels v Walker was concerned with the steps necessary before an expert, who was already an expert in the case, was allowed to give oral evidence at the trial. Obviously a without prejudice meeting is a very important preliminary step before any expert can be allowed to give such oral evidence, as has been recently confirmed in the revamped version of CPR Part 35. But the situation in the present case is different. Until Judge MacKay’s order, Mr Potter had no status at all in this case, and therefore could only be permitted to meet Mr Brotherhood unless and until he had the necessary status as an expert.

There is nothing in CPR Part 35, or indeed in the judgment of Lord Woolf in Daniels v Walker, which provides that, in circumstances such as these, an expert appointed in a particular case has to meet a third party - who has no status in the litigation - and to discuss the case in detail with him, before there can be any application for that third party to become an expert in the case and for his report to be relied on. I would regard such a procedure as pointless and a potential waste of costs. It seems to me that the claimant in the present case did not get the procedure the wrong way round: it was right to make the application to the judge first.

Another unhappy aspect of this application for permission to appeal is that it contains what I consider to be an unjustified personal attack on Judge MacKay. There are two elements to this attack.

First it is said that there was a “serious procedural irregularity” because the judge had made plain at the outset of the hearing that he had not had an opportunity to read Mr Jones’ statement. It seems that the very good reason for this was that the judge had not been provided with that statement before the hearing. It had not been sent to him or lodged with the court. It is plain from the transcript that he read that statement during the hearing, because he makes reference to its contents during the argument. There was, therefore, no procedural irregularity, whether serious or otherwise: these things happen. Judges are sometimes not given all the documents that they should be in advance. What matters is what the judge had read by the time he gave his judgment, and it is clear that, by then, he had taken on board the contents of Mr Jones’ statement.

Indeed, I too have looked carefully at Mr Jones’ statement, to see what difference it makes. The truth is that it is largely irrelevant. Much of it is confined to setting out historical matters. There is, however, a section at paragraphs 13 and 14 which purports to deal with the additional costs that would be incurred by both sides if Mr Potter was involved. It is said that these additional costs would be in the sum of £40,000.

As debated with Mr Pearson this afternoon, I simply do not accept the assumptions on which these figures have been put forward: the trial will not be permitted to take anything like four days; there would be no need for a further report from Mr Brotherhood; Mr Jones’ figures include elements of costs that would have been incurred in any event etc. The most important point is this: in a case where there is just a single joint expert, and he has to be cross-examined in circumstances where the cross-examiner has no expert evidence of his own before the court, that cross-examination takes a huge amount of court time. That is inevitable, given that the expert’s answers will be the only oral expert evidence before the court. Furthermore, in order to assist with cross-examination, an expert may need to be retained anyway, even if a report cannot be adduced in evidence. By contrast, in a properly run case, if two experts meet, produce a CPR 35.12 statement identifying the matters they agree and the matters on which they disagree, and their subsequent written and oral evidence is limited to those matters on which they disagree, that leads to a much more focussed effort all round. It takes less court time, less preparation time, and is therefore ultimately less expensive.

A second, and even more disquieting, element of the attack on Judge MacKay, was the original application for an order that this case be transferred to another judge, so that it was no longer dealt with by Judge MacKay. There was no evidence in support of that application and so I asked Mr Pearson about it at the outset of the hearing today. He said that the defendant wished to reserve the right, if Judge MacKay returns after his illness, to argue that the judge should recuse himself. Thus the position of Judge Mackay remained a matter that I had to address on this appeal, even though, in the light of my incredulity, Mr Pearson subsequently indicated that this aspect of the application was abandoned.

In my judgment, like the previous argument, this matter should never have been raised. Specialist judges like Judge MacKay case-manage hundreds of cases like this every year. Parties are not entitled to shop around for an alternative simply because they do not like the judge’s decision on one particular interlocutory dispute as the case progresses to trial. One party cannot expect to win on every issue, and cannot threaten to take home his bat and his ball if he does not: the system would grind to a halt if such conduct were permitted. All that happened here was that Judge MacKay reached a clear and correct answer on an issue which was adverse to the defendant and which had only arisen in the first place because of the failure on the part of the defendant’s team to comply with the rules. To talk of the judge recusing himself in such circumstances was wholly unjustified.

For all those reasons the application for permission to appeal is dismissed. I regard it as misconceived, for the reasons that I have indicated.