Expert evidence: Between a Rok and a hard Plaice

The Master of the Royal Court in the recent decision of Angel Fish Limited and others v Rok Construction Limited and others [2020] JRC 019 considered inter alia whether there should be a meeting between the experts in advance of the experts producing the reports.

The Angel Fish case concerned a dispute over construction works carried out on two sites in St Aubin. At a previous hearing the Master had directed that the parties could file evidence from an expert in respect of geotechnical engineering, quantity surveying, civil engineering, architecture, and valuation. Further, the Master had left over the issue of whether the experts should meet in advance of producing their expert reports. The defendants supported an early meeting having particular regard to the approach of the Technology and Construction Court in England and Wales (the “TCC”). The issue was however held over for another day because at that stage the Master felt he did not have sufficient information relative to the TCC’s approach.

The recent judgment considers the TCC’s approach to directing experts to meet in advance of reports. Omitted from the judgment is a reference to the Royal Court’s Practice Directions RC17/05 (in respect of directions hearings) and RC17/09 (in respect of expert evidence). RC17/05 states that the approach of the Court when making directions should take into account the needs of the case, the overriding objective and to ensure the issues between the parties are identified and necessary evidence is prepared to resolve those issues. RC17/05 also provides specimen directions which, in respect of experts, directs the field of expertise that expert evidence may be permitted and for mutual exchange of reports. RC17/09 provides that expert evidence will be determined by reference to the overriding objective.

In the writer’s experience, when the Royal Court directs that expert evidence be allowed and reports are to be exchanged, there is also ordinarily an additional direction that the experts meet and produce a joint statement setting out the areas of agreement and disagreement. The joint statement is a useful tool to hopefully help narrow down the issues and as an aide for the parties and members of the Court at trial.

The general practice in the TCC, it was submitted, was for experts to meet in advance of reports. It was advocated that it would be beneficial in the Angel Fish case because there were some issues and uncertainty as to what was exactly being alleged by the plaintiffs.

The Master accepted that there were issues with the plaintiffs’ pleaded case and that “the issues in dispute are not as clear as they could be.” Notwithstanding this, the Master declined to direct that the experts should meet in advance of reports. The Master’s decision was principally based on the fact that the uncertain issues related to questions of fact, not being issues upon which expert evidence can determine.

The Master in his judgment does acknowledge that there may be appropriate cases where experts should meet in advance of reports. However, the current position appears to be that the Royal Court will not readily depart from its previous practice of directing experts to meet until after they have issued their reports unless something justifies them directing otherwise.

Whilst there is some certainty in this approach, it may run contrary to the spirit of the overriding objective. The benefits of a joint and co-ordinated approach to the expert evidence at the outset is more likely than not to save considerable costs. This includes not just the experts meeting in advance but also an exchange of information as to instructions and documents given to the respective experts.

A more transparent process at this stage is likely to avoid contentious issues arising later and / or in the experts having to expand more time and costs revisiting their reports. In hard-fought litigation, promoting (and better still directing) more engagement early on in respect of expert evidence is likely to be pragmatic and arguably should be best practice. The Court may wish to consider what is the true rationale for a party not wanting to engage wherein there is unlikely to be much by way of additional costs in exchanging draft instructions early and / or in the experts meeting (face to face or over the phone).