Pennington Manches Cooper: Unreserved apology
A leading London law firm has apologised to the High Court and opposing party after going too far in asking an expert witness to amend a joint statement.
Penningtons Manches Cooper (PMC) said it had failed to understand the applicable rules and guidance.
While Simon Lofthouse KC, sitting as a High Court judge, said there had been “substantial and impermissible interference in the expert statement process”, the evidence did not show that the firm was trying to change the expert’s opinion.
He was ruling on the claimant’s application for permission for a new structural engineering expert in a dispute brought by West London homeowners with insurer AXA XL over an indemnity for damage caused to surrounding properties in the creation of a new basement. The trial is listed for September.
After concerns raised by AXA XL’s solicitors, RPC, PMC admitted in correspondence that “our conduct of the joint statement process was not fully in compliance with the applicable rules and/or guidance”.
In his witness statement, partner Peter Stockill explained: “I accept that we made comments on and proposed amendments to draft 3 of the joint statement that we were not permitted to make.
“In addition, I confirm that (albeit to a lesser extent) my firm also provided comments on and proposed amendments to drafts 2, 6 and 7 of the joint statement that we were not permitted to make.
“This non-compliance arose through a failure to understand the applicable rules and guidance and I apologise unreservedly to the court and AXA XL for this.”
He stressed that PMC “did not intend to have any impact on the substance of the views” of the expert but accepted that the court “could not now be satisfied as to his independence”.
Mr Stockill added that neither the claimants nor counsel had any involvement in the joint statement process.
Paragraph 13.6.3 of the Technology and Construction Court (TCC) Guide says that legal advisers should only invite the experts to consider amending a draft joint statement in exceptional circumstances “where there are serious concerns that the court may misunderstand or be misled”, and that such concerns should be shared with all the experts.
Judge Lofthouse said: “What is clear from the correspondence is that PMC believed it was permissible to amend the draft statement where it was thought the content did not reflect the pleaded issues and said the same to RPC…
“Such a belief, however misguided, is not the same as a deliberate and knowing disregard of the applicable principles.”
Nonetheless, the judge said, there had been “substantial and impermissible interference in the expert statement process by those acting for the claimants. Such interference is clearly contrary to both authority and the applicable guidance issued by the TCC”.
He went on to grant permission for a replacement expert because the trial date would not be lost and the expert evidence was central.
“Whilst I do not consider PMC have been open from the outset as to the extent of the interference in the joint statement process, the limited evidence before me does not support a conclusion that there was an attempt to change the opinion of [the expert] on the central issues in dispute,” the judge added.
He accepted that, if permission were refused, the claimants may change lawyers, which could have an effect on the trial date, and that any claim they may have against PMC for loss of chance “would not be straightforward” – although this was not on its own a reason to grant permission.
Judge Lofthouse ordered that, in addition to paying the costs thrown away on the indemnity basis, the claimants should also pay 30% of AXA XL’s costs in considering the joint statement and new expert’s report.
A PMC spokeswoman said: “The judge has recognised that this was a procedural mistake for which we made a full and frank admission and apology. At no time did we seek to supplant the views of the expert.”
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