Vilca & Ors v Xstrata Ltd & Anor

The Claimants are 22 Peruvian nationals who claim damages for personal injuries alleged to have been sustained in the course of a protest at the Tintaya copper mine in May 2012. Two of the claims are representative actions brought on behalf of deceased relatives. The Defendants were part of the Xstrata group, which has since been taken over by Glencore. The mine was one of Xstrata’s assets and was owned and operated by the Second Defendant, a company registered in Peru. The Second Defendant was an indirect subsidiary of the First Defendant, a company registered in England. It is alleged that the Second Defendant called in the Peruvian National Police to defend the mine.

For present purposes it is sufficient to note that Peruvian law applies to the claims against the Second Defendant. There is a dispute about whether English or Peruvian law applies to the claims against the First Defendant: claims are pleaded against it in English law and, in the alternative, Peruvian law. One of the issues that will arise for decision by the Court will be whether and in what circumstances the Defendants may be liable under Peruvian law for acts committed by members of the Peruvian security forces. The trial of the action is set to be heard over six weeks starting in October 2017, four months hence. The present expectation is that I will be the trial judge.

It has long been understood as inevitable that the Court will require the assistance of experts in the field of Peruvian law at trial. As set out in more detail later, the Court has made orders to that end. Also, as set out in more detail later, the expert who was instructed by the Defendants to prepare a report and appear at trial, Professor Revoredo, has withdrawn at a very late stage because of ill-health. As the time for exchange of expert evidence has now passed, the Defendants have issued an application for an extension of time to enable them to instruct a new expert.

The Claimants initially objected to the proposed extension but, having received medical evidence and a witness statement from Professor Revoredo, they accepted that the Defendants should be able to call someone else and should have the necessary extension of time to enable them to do so. But they took their stand on a submission that the court should require the disclosure of reports produced by the experts in Peruvian law who had been previously instructed by the Defendants as a condition of being allowed to call the new one. As this dispute unfolded it emerged that the Defendants had previously instructed two such experts: Professor Revoredo (who has just withdrawn) and Mr Amado (who was instructed at an earlier stage in the proceedings).

The parties were unable to agree and made their submissions at a hearing on 14 June 2017. At the end of the hearing I gave my decision, which is that the condition requested by the Claimants should not be imposed. In deference to the submissions which had been made with conspicuous skill on both sides, I reserved my reasons to be given later in writing. This judgment sets out my reasons.

The orders previously made by the Court in relation to experts in Peruvian law are as follows:

None of the orders identified the expert who was to be instructed on either side. As a matter of fact, Mr Amado was retained by the Defendants in October 2013 and provided advice to the Defendants until February 2015. At an early stage in the proceedings the Defendants pursued applications under CPR Part 24 and Part 11 but those applications were stayed, with the issues that would have been pursued in those applications now being matters that will be considered at trial. When the applications were stayed and it became apparent to the Defendants that, barring settlements, the case would proceed to trial, they chose to instruct Professor Revoredo in place of Mr Amado because she is the more eminent and experienced Peruvian jurist. Although the court had not required the identification of the experts that the parties chose to instruct, the Claimants had been told in December 2014 that Mr Amado would be the Defendants’ expert for the Part 24 not Part 11 applications. They did not discover that he had been replaced until the present issue arose.

The Claimants have an expert in Peruvian law in whom they have confidence and whose report they will in due course exchange. There is no information before the court to suggest whether the Claimants have consulted more than one person who is expert in Peruvian law and I make no assumption that they have or that they have not. It would not be material to my decision either way.

It is not necessary to set out the details of how it emerged that Professor Revoredo would be unable to act. In retrospect, the evidence suggests that she was struggling to make progress on her report throughout May 2017, if not before. I accept the assurance that, had her ill-health not intervened and had she not felt that she had to resign as a result, Professor Revoredo would have been the Defendants’ expert at trial. On the information provided to the Court and to the Claimants, the substitution of another expert in place of Professor Revoredo has nothing to do with expert shopping. The substitution of Professor Revoredo in place of Mr Amado was done with the intention of improving the quality and weight of the evidence that the Defendants could adduce; but there is no basis for suggesting that it involved the potentially disreputable practice of ditching an expert because he would not, for reasons good or bad, support a party’s case. I accept that the loss of Professor Revoredo was involuntary for and unwelcome to the Defendants. The loss of Mr Amado, on the other hand, was voluntary; and it was welcome in the sense that the Defendants then had in Professor Revoredo an expert who they considered to be more eminent and experienced.

The Defendants’ present application is formally an application for an extension of time to serve expert evidence. That is technically the correct approach as Professor Revoredo has never been identified by the Court as the expert for whom specific permission is given. However, both parties recognised that the substance of the issue lies in the question whether and if so on what terms the Defendants may instruct someone other than Professor Revoredo and use their evidence at trial.

Ms Kaufmann QC for the Claimants submitted that the Court should only permit the instruction and calling of a replacement expert on condition that the Defendants disclose reports produced by experts previously instructed in the case. In the light of information that Professor Revoredo’s report is not finished, she submitted that all documents setting out the substance of Professor Revoredo’s opinion as expressed in the most recent draft of her report or elsewhere should be disclosed; and that the same should apply to work produced by Mr Amado. She asserts that, where there is an application to the court that is in substance an application to instruct a new expert in circumstances that give the court power to impose such conditions, there is a rule of law and procedure that the Court should impose conditions save in rare circumstances. She submitted that the rationale for the rule is (a) to discourage expert shopping and (b) to assist the opposing parties and the court.

The starting point in authority for Ms Kaufman’s submissions is Beck v Ministry of Defence [2003] EWCA Civ 1043, [2005] 1 WLR 2206, which was a personal injury action. There was an order for the exchange of expert evidence on 10 October 2002 that did not identify the experts whose reports were to be exchanged. The Defendant’s expert, Dr Goodhead, examined the Claimant and prepared a report, after which the Defendant lost confidence in him. On 10 October 2002 (i.e. the day before exchange was due) the Defendant asked the Claimant for facilities for a further examination by a different expert. When that request was refused the Defendant made an application on 11 November 2002 (i.e. out of time for exchange). The leading judgment was given by Simon Brown LJ, with whom Ward LJ agreed. Lord Phillips MR gave a concurring judgment. The critical question was whether the Court should order the disclosure of Dr Goodhead’s report as a condition of the granting of permission for the Defendant to examine the Claimant a second time: see [17].

At [24]-[26] Simon Brown LJ said:

“24.

Very different considerations, however, seem to me to arise once in principle it has been decided to make the order allowing a new expert to be instructed. At this point I can see no reason for continuing to withhold disclosure of the original report which is now to be discarded and every possible reason why such disclosure should be made. In Lane v. Willis [1972] 1 WLR 326 one notes, the Court of Appeal was told, on indicating that they proposed to allow the defendants to instruct a further expert, that the defendants would thereupon disclose their existing evidence. Roskill LJ, at p 335, described that as a very proper undertaking by counsel for the defendants:

“that if this court makes the order which he seeks, at any rate in some form, the defendant’s solicitors will, as soon as they get [the new report], send to the plaintiff’s solicitors a copy not only of that report but of the several examinations of the plaintiff. If the defendant does not wish to call Dr Carroll at the trial, it would then be open to the plaintiff to call him if he so desired.”

25.

The disclosure of the original report, as a condition of being allowed to instruct fresh expert, would also meet the concern expressed by Sachs LJ in the third passage of his judgment at p 334 cited above in para 16: “no room should be left for a plaintiff to wonder whether the application is really due to the reports of a defendant’s medical expert being favourable to the plaintiff.”

26.

I do not say that there could never be a case where it would be appropriate to allow a defendant to instruct a fresh expert without being required at any stage to disclose an earlier expert’s report. For my part, however, I find it difficult to imagine any circumstances in which that would be properly permissible and certainly, to my mind, no such circumstances exist here.”

Lord Phillips MR said at [35] that imposing the condition in the case of Beck:

“… should both prevent the practice of expert shopping, and provide a claimant in the position of Mr Beck with the reassurance that the process of the court is not being abused. In this way justice will be seen to be done.”

Left to my own devices, I would identify the reasons given by the Court of Appeal for imposing the condition to be (a) to prevent expert shopping and (b) to provide the other party with reassurance that the process of the court is not being abused. However, I am not left to interpret Beck and its reasons on my own: others of higher authority have considered the principles underpinning it already.

Vasiliou v Hajigeorgiou [2005] EWCA Civ 236, [2005] 1 WLR 2195 was a claim for damages for breach of the Defendant’s covenant of quiet enjoyment in a lease of restaurant premises. In July 2004 the court gave permission to the parties to instruct valuation experts without identifying the experts to be instructed. The Defendant’s expert report was ordered to be exchanged on 4 October 2004. The first expert instructed by the Defendant, Mr Watson, attended the premises and inspected them. On 20 September 2004 the Defendant wrote to the Claimant asking for access for another expert to inspect the premises. The Claimant took the position that permission should not be given to the Defendant to adduce evidence from another expert without disclosing Mr Watson’s report. The Defendant’s evidence on the contested application, which was served after the date for service of the Defendant’s report had passed, was that the replacement expert could have prepared a report within the timescale laid down by the court’s existing order. No reason or explanation was given for the switch in experts. The judge at first instance construed the order relating to expert evidence as giving the Defendant permission to rely upon Mr Watson. Treating this as the first issue, the Court of Appeal rejected that construction: see [16]. At [19] it expressed its conclusion on the first issue:

“It follows that in disagreement with the judge, we consider that the terms of the order of 21 July did not of themselves require the defendant to obtain the permission of the court to rely on the evidence of [the second expert]. Moreover, as we have pointed out, the judge was told that the defendant would have been able to serve the report of [the second expert] within the time specified by the order of 21 July”

It is at least implicit in this passage that the Court of Appeal considered that there was no justification for ordering the disclosure of Mr Watson’s report in circumstances where he had not been identified as the expert for whom permission had been given by the Court order; and that there was no justification for imposing the condition (that Mr Watson’s report be disclosed) where the Defendant could have (and by implication would have but for the dispute that had arisen) served the report from the second expert on time in accordance with the existing orders of the Court. The suggestion that the imposition of the condition was justified because of the request for a second inspection was dismissed by the Court of Appeal because (a) that was not the basis of the Claimant’s objection to the appointment of the second expert, and (b) the second expert could have written his report without carrying out an inspection of the premises himself: see [21]. The Court of Appeal additionally said that, in its view, it would have been unreasonable and disproportionate to impose the requirement (i.e. disclosure of Mr Watson’s report) as a condition of giving permission for the second expert to inspect the premises. This is a timely reminder of the need for the exercise of the Court’s discretion and application of principles to be reasonable and proportionate.

The Court of Appeal’s decision on the first issue rendered its subsequent discussion obiter. However, the Court considered the case additionally on the hypothetical basis that the Defendant needed the permission of the Court to rely on the evidence of the second expert rather than the first. Having cited (more extensively than I have above) from all three judgments in Beck, the Court of Appeal said at [27] and [29]-[30]:

“27.

The court approached the issue that was before it on the footing that the defendants required permission in order to rely on the second expert. That is the basis on which we are approaching the second issue in the present case. The question of principle that was decided in Beck’s case was that the court has the power to give permission to a party to rely on a second (replacement) expert which it should usually exercise only on condition that the report of the first expert is disclosed. This decision is binding on us. We cannot accept that the decision is wrong or that it is conceivable that the court was unaware of the fact that reports prepared for the purposes of litigation are, until they are disclosed protected by privilege.”

And

“29.

The principle established in Beck v. Ministry of Defence (Note) [2005] 1 WLR 2206 is important. It is an example of the way in which the court will control the conduct of litigation in general, and the giving of expert evidence in particular. Expert shopping is undesirable and wherever possible, the court will exercise its powers to prevent it. It needs to be emphasised that, if a party needs the permission of the court to rely on expert witness B in place of expert witness A, the court has the power to give permission on condition that A’s report is disclosed to the other party or parties, and that such a condition will usually be imposed. In imposing such a condition, the court is not abrogating or emasculating legal professional privilege; it is merely saying that, if a party seeks the court’s permission to rely on a substitute expert, it will be required to waive privilege in the first expert’s report as a condition of being permitted to do so.

30.

A question that was not considered in Beck’s case is whether the condition of disclosure should relate only to the first expert’s final report, or whether it should also relate to his or her earlier draft reports. In our view it should not only apply to the first expert’s “final” report, if by that is meant the report signed by the first expert as his or her report for disclosure. It should apply at least to the first expert’s report(s) containing the substance of his or her opinion.”

I note with due deference that the Court of Appeal said twice that the court will “usually” exercise its power to impose a condition; and that, in [29], the “usual” imposition of the condition is set out as the solution to the “undesirable” practice of expert shopping and the court’s determination to prevent it wherever possible. I respectfully agree that the Court should prevent undesirable expert shopping wherever possible and that requiring the disclosure of the substance of the first expert’s opinion is usually the means that the Court will adopt in order to do so.

Edwards-Tubb v J D Wetherspoon plc [2011] EWCA Civ 136, [2011] 1 WLR 1373 was a personal injury action to which the pre-action protocol for personal injury claims applied. The Claimant listed three potential experts in the letter before action and, no objection being taken by the Defendant, instructed one of them who examined the Claimant and made a report. Liability was admitted. When proceedings were issued the Particulars of Claim were supported by a report from another expert, which mentioned the first expert. The Defendant applied for disclosure of the first expert’s report as a condition of the Claimant being permitted to rely upon the second. On appeal, the Defendant was successful.

Hughes LJ, with whom Richards LJ and Lord Neuberger MR agreed, gave the substantive judgment of the Court. He identified the issue and the justification for ordering disclosure at [11]:

“The question of principle which this case raises is whether the power to impose a condition on the grant of permission to rely on expert B can properly be employed to require the disclosure of the privileged report of expert A, and if so when. If this is proper, what is being done is not directly to override the privilege, because the claimant can elect to stand upon his right to it. Rather it is presenting the claimant with a price which must be paid for the leave of the court to rely on expert B; that price is waiver of privilege in relation to expert A. … The suggested basis and justification for doing this is the need to prevent expert shopping and, where it has taken place, to put before the court of trial the whole of the available evidence on the question at issue, and not only part.”

Beck was considered at [16]-[20]. At [17] Hughes LJ identified the Defendant’s need for permission in Beck as being a need for permission to examine the Claimant a second time. At [19]-[20] Hughes LJ summarised the effect of Beck, identifying the twin objects of imposing the condition of disclosure of a discarded expert report as being “(a) discouraging expert shopping and (b) making available to the other party, and thus to the court, an expert report on the issue in the case.” He also made clear the need to concentrate on the substance of the application in hand rather than the formal vehicle in which it was presented.

Turning to Vasiliou, Hughes LJ summarised the decision as follows at [23]:

“The clear, indeed emphatic, decision was that where the court has power to attach such a condition to an order which is needed by the party changing expert it should attach it.”

This summary omitted any qualification such as “usually”: but I do not understand Hughes LJ in this passage as intending to remove the qualification as a matter of principle, not least because he immediately thereafter set out [29] of the judgment in Vasiliou which expressly includes the qualification “usually”: see above. Furthermore, when Hughes LJ provided his own formulation of the principle at [30]-[31] he did so in terms that were consistent with Beck and Vasiliou in (a) identifying the rationale for imposing a condition as “to maximise the information available to the court and to discourage expert shopping”, and (b) in re-introducing the qualification “usually”.

I was also referred by the parties to two first instance decisions, BMG (Mansfield) Ltd and anor v Galliford Try Construction Ltd and anor [2013] EWHC 3183 (TCC), and Allen Tod Architecture Ltd v Capita Property and Infrastructure Ltd [2016] EWHC 2171(TCC). Each is a useful example of the application of existing principle. Neither gives rise to any novel or further point of principle that needs to be considered in detail here.

Without in any way derogating from the statements of the higher courts to which I have referred, it seems to me that they speak with one voice on the central issue of principle that affects the present application. The first question for the court of first instance when it is faced with an application such as the present is whether the circumstances give rise to any power to impose a condition. In answering this first question, Beck and Vasiliou stand as useful examples of cases falling on either side of the line. In Beck the Defendant needed the Court’s permission for a second examination. That gave the Court the power to exercise its discretionary case-management powers, which are always to be exercised in accordance with the overriding objective. On the other side of the line, in Vasiliou the previous order of the Court had not specified a particular expert and the Defendant could have complied with all existing orders on time even with its new expert. When the Defendant raised the issue with the Claimant, there was nothing to give rise to further powers to control the conduct of the parties. No question of imposing a condition therefore arose.

The second question, which arises if the court has determined that it has case-management powers, is how they should be exercised on the facts of the particular case. I have already said that they should always be exercised in accordance with the overriding objective. The cases to which I have referred above do not establish some different principle. What they establish is that the court will always have regard to the possibility of undesirable expert shopping and the instinctive desire for the court to have full information (with the associated desire for the other party to be assured that the court’s process is not being abused). The Court of Appeal has consistently said (albeit in slightly differing terms) that the object of imposing a condition that reports of previous experts should be disclosed is to prevent expert shopping and to ensure that full information is available.

I do not exclude the possibility that there might be cases where the two limbs of the rationale identified by the Court of Appeal might be absent and yet there might be some other reason, specific to the facts of that case, which require or justify the imposition of the condition of disclosure. But I do not accept that it is established either on principle or by authority that there is a rule of practice or procedure requiring that the condition be imposed if the two limbs of the rationale are absent and there is no other good reason to impose it. Furthermore, while the usual course where the two limbs of the rationale are present will be that the condition will be imposed, it is not inevitable. In my judgment the court should in all cases apply its mind to what course will best meet any concerns that may exist and best advance the overriding objective. This requires the court to consider in any given case what weight, if any, is to be given to those factors that might support the imposition of conditions as well as to those which tend in the opposite direction.

I accept that the Defendants need an extension of time, which brings into play the Court’s powers to control its process. Those powers include the power to order that the substance of the opinion of prior experts be disclosed as a condition of the grant of the extension of time.

This is not a case where there is any sound basis for concern about undesirable expert shopping. Professor Revoredo has the misfortune to be unwell and has withdrawn. The Defendants have assured the Court that she would have been their expert at trial but for her ill-health. There is no reason to doubt that assurance and I accept it. The reason for the switch from Mr Amado to Professor Revoredo has also been explained coherently; and it is material to take into account that no question of the switch from Mr Amado to Professor Revoredo could have arisen for consideration by the court but for the misfortune of Professor Revoredo’s ill-health. The Defendant’s were entitled to change experts at that time and would have had no reason to suppose that they would subsequently be unable to comply with time limits in the way that has occurred. Had Professor Revoredo become unwell even a short time earlier, no question of requiring the Court’s intervention would have arisen as the Defendants could and would have obtained an alternative expert’s report in time to serve it in accordance with the orders of the court that were then applicable.

In my judgment, there is also no sound basis for any suspicion of abuse of process by the Defendants. In addition, the circumstances in which the new expert has been instructed do not suggest any substantial reason for thinking that the Court (and the Claimants) will not have full information. Ms Kaufmann made the point that the Claimants do not know what is in the opinions of the prior experts. That is true, but it is worth remembering two things when considering the substitution of one expert in Peruvian law for another. First, as with experts in any other discipline, it is to be expected that there will be some differences in opinion (or expression of opinion) between different experts. It does not follow that the differences will necessarily or even probably assist the court or the opposing party in identifying the correct resolution of any issues that it has to decide. Second, there is equality of arms between the parties because the Claimants have their own expert, in whom they have confidence. There is no reason to suppose that the Defendants’ new expert will omit relevant material that might have been included by Professor Revoredo: in other words, there is no reason to think that disclosure of Professor Revoredo’s draft report will add usefully to the information that is available to the court and the Claimants. If, however, there is error or omission in the new expert’s report, the Claimants are able to identify it during the process of expert’s meetings and joint statements and, if necessary, at trial.

I add for completeness that the possibility of the Claimants wishing to call Professor Revoredo or, more importantly, Professor Revoredo being in a position to be called at trial seems so unlikely as to be fanciful.

It follows that, in my judgment, this is not a case where there is a need to protect against undesirable expert shopping or to take steps to ensure that all useful material is available to the Claimants or the Court. I am unable to identify any other good reason for imposing the condition. Ms Kaufmann floated the possibility of an “in terrorem” order being made to deter those who might be contemplating expert shopping or the abuse of the court’s process in other cases. My prime concern is to achieve justice between the parties in this case; and I am far from convinced that imposing an order for disclosure of prior experts’ reports in the circumstances of this case will have any deterrent effect in others. The principles are now well-established: anyone competent to conduct litigation knows that, if there is a hint of undesirable expert shopping or that significant relevant material is being withheld, the imposition of the condition will be the usual order.

These reasons would of themselves be sufficient for my decision. But I also take into account the fact that I am to be the trial judge; and I look ahead to how the trial may best and most expeditiously be conducted. I look forward to reading the evidence of the experts on Peruvian law and to hearing their evidence on points of disagreement at trial. Speaking for myself, I would almost certainly find the deployment of reports (draft or otherwise) or other material that is said to contain the substance of a prior expert’s opinion to be a distraction and a hindrance; and I am certainly not going to be influenced by a numbers game where it is urged upon me that not only does Expert A hold a view but Experts B, C or anyone else would have held the same view if they had served a report and been called. My personal experience of dealing with expert evidence on foreign law has been that the debate between the experts who have been called has identified and elucidated all necessary points of agreement and difference and, in the case of disagreement, the reasons why agreement has not been reached. There is no reason to think that the present case will be different. Finally, the fact that Professor Revoredo’s report is still in draft form means that, if an order for disclosure were to be made, there would be the prospect of distracting and expensive argument about whether a certain passage did or did not represent her finally considered view; and whether or not other communications should or should not be disclosed on the basis that they might contribute to an understanding of her views. These practical considerations about how the trial process may best be conducted support the view that I would have formed in any event.

For these reasons I consider that the authorities to which Ms Kaufmann has referred do not require me to exercise my case-management powers and discretion so as to impose a condition of disclosure on the facts of this case. There is no good reason to impose the condition; and the overall balance, taking into account the overriding objective and with a view to conducting a fair, effective and expeditious trial, is firmly in favour of not imposing the condition in this case.