Reports for ex-parties
What happens to a report when the party it was prepared for drops out of the litigation?
In multi-party cases, proceedings might involve numerous parties, not all of whom proceed to full trial. This poses a question concerning the admissibility of expert evidence that was prepared for someone who is no longer a party. Can such an expert witness report be relied upon by one or other of the remaining parties? This question was considered by the court in Cooperative Group -v- John Allen Associates  EWHC 2300 (TCC).
The case of the sloping supermarket
The case concerned a dispute over the development of a supermarket site in Kent. The contracts and subcontracts were complex and fairly numerous. The original landowner had engaged a developer for the site. The developer, in turn, instructed a professional consultant (John Allen Associates Ltd) and a building contractor, both of whom gave collateral warranties to the original landowner. The original landowner transferred its rights and obligations to the Co-operative Group Limited (the new landowner) after the project reached practical completion, but before claim forms were issued.
The building works encountered difficulties. The site was on soft clay and the ground needed to be stabilised. The professional consultant recommended a ‘vibro-replacement’ method and the work was subsequently designed and carried out by the subcontractor by means of vibro-replacement stone columns. A concrete slab was laid, upon which the supermarket was built. However, the concrete slab began to settle to such a degree that the floor of the supermarket acquired a marked slope, and all the parties agreed that remedial works would be necessary to correct the problem.
After lengthy negotiations and correspondence, the parties failed to reach agreement on responsibility for the defect. The new landowner commenced proceedings against the professional consultant, claiming damages for breach of the professional consultant’s collateral warranty to the original landowner (upon which the new landowner now relied). The new landowner claimed that vibro-replacement had been an unsuitable method for stabilisation and that the professional consultant acted in breach of the standard of care in its collateral warranty. The professional consultant added the building contractor to proceedings as a third party. The building contractor added the subcontractor to proceedings as a fourth party.
All parties instructed expert witnesses, whose reports were disclosed. Each party expected that their expert evidence would be adduced in evidence at the trial. On the second day of the trial, however, the professional consultant, building contractor and subcontractor settled the counterclaims between themselves and they took no further part in proceedings. Because of this, their expert witnesses could not be called to give evidence in person. However, the new landowner still sought to rely on their expert witness reports during the trial.
Guidance from the court
Ramsey J considered the admissibility of this and gave the following guidance.
Civil Procedure Rule (CPR) 35.11, headed ‘Use by one party of expert’s report disclosed by another’, provides as follows:
‘Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial.’
The defendants had argued that the term ‘party’ here is limited to parties to the claim and does not include counterclaim (CPR Part 20) parties. Ramsey J didn’t agree, saying that CPR 35.11 does not prevent parties relying on expert reports of parties that are no longer involved. In a case involving a number of parties, where witnesses have met and exchanged views and the issues which arose were common between the original claim and the additional claim, ‘it would be unrealistic to draw a distinction between evidence given by the original parties to the claim and those instructed by the parties to the Part 20 claim.’
He also pointed out that, in any event, the court retained the power to control the expert evidence under the overriding objective, and also under its general powers of management under CPR 3.1(2), its general powers to control evidence under CPR 32.1 and its specific powers relating to expert evidence under CPR 35.1. And amongst the court’s duties and powers is the need to ensure that, where some part of the proceedings has already been settled, any evidence under CPR 35.11 is restricted to that which is ‘reasonably required to resolve the remaining issues in the proceedings’.
Inability to cross-examine reduces weight
In allowing the new landowner to rely on expert reports prepared on behalf of parties that were no longer participating in the trial (including referring to the joint statements), the judge stated that there was no particular requirement for the court to give permission before a party used an expert witness report disclosed by another party as evidence at the trial. However, the fact that the experts themselves could not be cross-examined would mean that the weight given to evidence contained only in reports would be ‘much less’ than expert evidence that was supported in oral evidence. The weight given to each report was a factor that the court had to decide in assessing the evidence.
Ramsey J also made it clear that the party wishing to rely on the expert witness report could not cherry pick from its contents. Once a report was relied on in evidence, the court must take account of the whole of that report, so far as it was relevant, and a party could not choose which parts of the expert witness report should be given in evidence.