Avantage (Cheshire) Limited & Ors v GB Building Solutions Limited & Ors

The application before the court is the claimants’ application to call a new expert, Dr Neil Ketchell, in place of (i) Ms Sarah Hooton, a forensic scientist, and (ii) Mr Peter Wise a fire engineer.

The application in respect of Ms Hooton is not opposed in principle but the defendants’ position is that the court should make permission subject to conditions that Ms Hooton’s earlier reports, opinions and investigation notes be disclosed.

The application in respect of Mr Wise is opposed on the basis that no proper explanation has been provided for the proposed substitution; alternatively, if permission is granted by the court it should be on condition that his earlier reports, opinions and notes should be disclosed.

The claim arises out of a fire that occurred at Beechmere Retirement Village in Crewe on 8 August 2019, destroying almost the entire property.

The fire appears to have started as a result of ‘hot works’ which were carried out by a roofing contractor, MAC (Roofing & Contracting) Limited, on the top floor of the central part of the building.

The claimants seek damages of more than £40 million from the defendants in respect of alleged deficiencies in the design and construction of the property, including the absence of compartmentation, cavity barriers and sprinklers, resulting in a failure to inhibit the spread of fire:

The proceedings were issued on 9 October 2019, although a stay was then granted for further investigations to be carried out and for the pre-action protocol to be implemented.

Following a case management conference, on 21 October 2021 Joanna Smith J ordered that the trial should start on 3 April 2023 with an estimate of 24 days plus 3 days’ reading time and gave directions to trial, including the following in respect of expert evidence:

In October 2022 the parties stopped complying with the timetable whilst they endeavoured to reach a settlement of the dispute through mediation. The parties should have referred the matter back before the court so that the timetable could be revised at that stage but it is appreciated that they were optimistic that a resolution would be achieved; or, if not, that a recovery timetable would still enable them to be ready for trial.

On 10 February 2023, with the consent of all parties, the claimants applied for the trial to be adjourned as a result of a serious illness suffered by their main expert, Ms Hooton.

By order dated 28 February 2023, I adjourned the trial until 9 April 2024 with an estimate of 27 days, including 3 days for judicial reading, and ordered this case management conference.

On 21 March 2023 the claimants issued an application, seeking permission to call Dr Neil Ketchell, in place of Ms Sarah Hooton, to give evidence in relation to the cause, origin and spread of the fire at Beechmere.

CPR 35.1 provides that expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

CPR 35.4 provides that the court’s permission is required before an expert’s report can be relied upon or an expert can be called to give oral evidence.

The order dated 21 October 2021 gave permission for the claimants to call Ms Hooton, a forensic scientist, to give evidence in relation to the cause, origin and spread of the fire at Beechmere. Therefore, the court’s permission is required for her replacement in respect of such expert evidence.

The court’s power to permit a party to change the expert witness on which it relies, and the basis on which its discretion should be exercised, was considered in The University of Manchester v John McAslan & Partner and others [2022] EWHC 2750 (TCC) by Mr Roger ter Haar KC, sitting as a Deputy High Court Judge, who helpfully carried out a careful and detailed review of the material authorities.

The relevant principles can be summarised as follows:

In this case, the ground on which the substitution is sought is Ms Hooton’s serious illness, which requires treatment and prevents her from continuing to participate in these proceedings. Ms Hooton’s role as an expert is critical to the claimants’ case, as explained in the second witness statement of Ms Rebecca Carrera of RPC LLP dated 20 March 2023:

The claimants have identified an alternative forensic expert, Dr Neil Ketchell, who has the qualifications and expertise to assist and take over Ms Hooton's role.

There is no challenge to the grounds on which the claimants seek to replace Ms Hooton with Dr Ketchell and the application in respect of Ms Hooton is not opposed in principle. However, the defendants’ position is that the court should grant permission subject to conditions that the following documentation should be disclosed:

Further, Mascot seeks an additional condition for granting permission that the following categories of documents should be disclosed:

The starting point for the court is that, as submitted by Mr Hext KC, leading counsel for the claimants, the claimants are not choosing to replace Ms Hooton with Dr Ketchell; for unfortunate reasons beyond the claimants’ control, she is simply unable to participate further and they are forced to replace her. No criticism can be made of the claimants in changing experts and there is no question of expert shopping.

In those circumstances, I consider that it would be unjust to impose a condition that the claimants must disclose Ms Hooton’s reports, draft reports or other documents setting out her opinion. It follows that there are no grounds for ordering the disclosure of attendance notes produced by the claimants’ solicitors recording meetings, telephone calls or other discussions with Ms Hooton evidencing her opinion on the cause, origin or spread of the fire.

However, the court considers that there is more force in the submissions by Mr Thompson, counsel for PRP, supported by Mr Kerry, counsel for Prestoplan, Mr Hale, counsel for WSP, and Mr Elkington KC, leading counsel for Mascot, that Ms Hooton’s notes of her early inspections and interviews provide a unique source of valuable information in the case that should be disclosed.

Ms Carrera sets out the early involvement of Ms Hooton in her first witness statement dated 10 February 2023:

The notes and other documents produced by Ms Hooton in these early inspections will contain relevant evidence of primary facts, namely the condition of the property in the aftermath of the fire and the presence of defects. That evidence is not available from any future inspection because the remaining part of Beechmere that survived the fire has since been demolished.

It is likely that, if she continued to participate in the proceedings, Ms Hooton would have referred to such documents in discussions with the other experts and/or when preparing her report; if so, the documents would have been disclosed at that stage to the defendants. It is also likely that Dr Ketchell will have access to Ms Hooton’s notes and other documents regarding such source material, whether or not he chooses to rely on it.

In those circumstances, fairness and transparency require that this material should be made available to all the relevant experts in the case. It is particularly important that Mr Michael Jones, Mascot’s expert, should see such material because Mascot was not involved in the dispute at that point and therefore he did not participate in any of the early investigations.

Similarly, the notes or memoranda prepared by Ms Hooton when interviewing Mr Scott could contain details that might be significant to the experts but not recognised as such by Mr Scott, or no longer recalled by him and, therefore, not addressed in his witness statement. Again, this documentary information should be made available to the other relevant experts as a matter of transparency and fairness.

In summary, there is no impropriety in the claimants’ request to change their forensic scientist expert. They have been forced to make the change by the unfortunate illness of Ms Hooton, a matter over which the claimants have no control and for which there should be no court sanction. For that reason, the defendants’ requests for an order that the claimants should disclose Ms Hooton’s report(s), draft report(s) or other documents evidencing her opinion are refused. However, the court will order disclosure of Ms Hooton’s reports and notes of site inspections and interviews on the basis that those documents contain relevant, primary information that is no longer available to the other experts.

On 21 March 2023 the claimants issued an application, seeking permission to call Dr Neil Ketchell, in place of Mr Peter Wise, to give evidence as to the adequacy of the fire strategy, whether the relevant elements of the design of Beechmere complied with the Building Regulations in force at the time of the project, and whether the design of Beechmere should have included sprinklers and, if so, what difference their inclusion would have made to the spread of the fire.

The order dated 21 October 2021 gave permission for the claimants to call Mr Wise, a fire engineer, to give evidence in respect of the above matters. Therefore, the court’s permission is required for his replacement in respect of such expert evidence.

The grounds on which this application is made are more opaque. In her second witness statement, Ms Carrera states:

Further explanation has been set out in Ms Carrera’s third witness statement dated 23 March 2023:

The application in respect of Mr Wise is opposed on the basis that there is no suggestion that he could not continue to act as an expert in these proceedings. No proper explanation has been provided for the proposed substitution and it is expert shopping. Alternatively, if permission is granted by the court it should be on condition that the following documents should be disclosed:

I note the legitimate concerns raised by Mr Hale on behalf of WSP, the party most affected by this expert evidence, that this appears to be an exercise in expert shopping. Mr Wise is qualified and available to give evidence at trial on the issues he has been asked to address and he has carried out substantive expert work on the case.

Despite those concerns, I am satisfied that this is an appropriate case in which to allow the claimants to rely on the expert evidence of Dr Ketchell instead of Mr Wise. Although the reasons for the proposed change were unclear initially, Mr Hext has been frank with the court that the claimants are not happy with Mr Wise as an expert. It is in the interests of justice that the claimants should have permission to rely on an expert in whom they have confidence. The adjournment of the trial date and the revised timetable for expert evidence means that no prejudice will be suffered by the other experts as a result of the proposed change.

The claimants accept that the court will impose a condition that the three reports prepared by Mr Wise must be disclosed. For clarification, this must include any draft reports. It is also appropriate that any further documents in which Mr Wise expressed opinions as to the matters encompassed within the scope of the original permission ordered by the court, including the issue of sprinkler design and their impact on the spread of fire, must be disclosed.

However, I do not consider that this is a case in which the claimants’ solicitors should be required to disclose attendance notes of their discussions with Mr Wise. Such an order would cause practical difficulties in producing redacted versions of the documents that were of any probative value. Further, such an order would constitute an unnecessary invasion of the claimants’ privilege in circumstances where there is no suggestion of any culpable behaviour on the part of the claimants or their experts; they are simply unhappy with Mr Wise as an expert.

There remains uncertainty as to the role played by Mr Todd and the reliance placed or to be placed on Mr Todd’s sprinkler analysis by Dr Ketchell. The court has not been asked to make any order in relation to Mr Todd but, quite properly, the defendants have reserved their right to object to Mr Todd’s involvement, or make other applications, once they have had an opportunity to consider this part of the expert evidence.

For the above reasons, the court grants permission to the claimants to call Dr Neil Ketchell, in place of Ms Sarah Hooton, to give evidence in relation to the cause, origin and spread of the fire at Beechmere, subject to conditions that the following documentation should be disclosed:

The court grants permission to the claimants to call Dr Neil Ketchell, in place of Mr Wise, to give evidence in relation to the adequacy of the fire strategy, whether the relevant elements of the design of Beechmere complied with the Building Regulations in force at the time of the project, and whether the design of Beechmere should have included sprinklers and, if so, what difference their inclusion would have made to the spread of the fire, subject to conditions that the following documentation should be disclosed:

All consequential or other matters, if not agreed, will be dealt with by the Court on written submissions or at a further hearing to be fixed by the parties.