England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/10/2013

Mr Justice Stuart-Smith:

1. On 13 September 2011 the court gave the Claimants permission to produce and serve by 19 October 2012 an expert report in the field of pipeline project and engineering management. The issue of whether such evidence was to be admitted (if not agreed) was to be dealt with at a subsequent hearing.
2. On 19 October 2012 the Claimants served a draft report from Mr David Willis. On 2 November 2012 the Defendant objected to the admission of the report on the basis that it was not reasonably required and that it was inadmissible and/or irrelevant. In the light of the concerns raised by the Defendant, Mr Willis provided a letter on 10 June 2013 setting out the parameters of further work that he had undertaken; and on 9 August 2013 a revised version of his report was served. That is the version of Mr Willis' report upon which the Claimants now seek to rely.
3. In support of their application for permission to rely upon the evidence of Mr Willis at trial, the Claimants submit that the essential question is whether the expert evidence will have a bearing on the issues and will be helpful to the court in deciding those issues: see Barings PLC v Cooper & Lybrand (a firm) [2001] PNLR 22 at [20]. They also rely heavily upon the fact that the Defendant has substantial in-house expertise in relation to pipeline project management and has already served witness statements from three witnesses who deal with the manner in which the pipeline was laid. The Claimants submit that the court may not have sufficient familiarity to resolve issues of proper practice in pipeline management without the assistance of knowledgeable and expert witnesses; and they submit that without Mr Willis there can be no equality of arms for the Claimants, who have no knowledge of such matters, in contested litigation against the Defendant, which has.
4. The Defendant submits that the evidence of Mr Willis is not reasonably required to resolve the proceedings and therefore falls foul of the principle set out by CPR 35.1. It relies upon the observations of Oliver J in Midland Bank Trust Co. Limited v Hett, Stubbs & Kemp [1979] Ch 384, 402 and the warning given by Dyson J (as he then was) in Pozzolanic Lytag Limited v Bryan Hobson Associates [1999] BLR 267. They also point to the judgment of HHJ Toulmin CMG QC in Pride Valley Foods Limited v Hall and Partners (Contract Management) Limited [2000] All ER [D] 653 who questioned, at [140], whether the duties of project managers were properly the subject of expert evidence.
5. The Defendant's objection to the admission of Mr Willis' report has five main strands. First, it challenges Mr Willis' expertise and his qualifications to provide expert evidence. Formal membership of specialist associations or institutes, whether by examination or otherwise, is not the necessary touchstone for expertise. The Defendant points out, correctly, that the great majority of Mr Willis's experience is in relation to the laying of offshore pipelines. However, Mr Willis has been practising in the field since 1972. He became a member of the Institution of Civil Engineers and became a chartered engineer in 1975, and in 1995 he became a fellow of the Institution of Civil Engineers. According to his report, he has wide-ranging experience which should qualify him to speak with expertise on the matters which are in issue in this action. Whether his evidence proves to be reliable and authoritative is a question that will doubtless be explored if he is called to give evidence.
6. The Defendant's second objection goes to the substance of Mr Willis' report. The Defendant submits that he has done little more than read a number of documents and then usurp the function of the court by making findings which it is not his proper function to make. In submissions, the Claimants accepted that there may be places in the report where Mr Willis strays across the line, but they submit that what he has done is to review relevant material and then attempt to express his opinion on the basis of his understanding whilst recognising that, if his understanding of the facts is incorrect, his opinion may need to be revised. Having read and re-read the report I would agree that it is not always happily phrased and that from time to time Mr Willis goes beyond the proper limits of his remit as an expert witness. However, a fair and dispassionate reading of the report shows that he is conscious of the respective functions of an expert witness and the court and that he has attempted (though not always successfully) to stay within proper bounds.
7. The third main strand emerges from a detailed analysis comparing the first and second versions of Mr Willis' report. On the basis of that analysis the Defendant submits that Mr Willis' reference to standards that might inform the court's approach to the proper duties of an Operator responsible for the laying of a pipeline is superficial and that he has conducted no substantial analysis of the relevant standards in a way that might provide useful information to the court. In my view, the analysis conducted by the Defendant of the changes between the first and second versions of the report raises questions which may usefully be deployed by the Defendant in cross examination if Mr Willis gives evidence. However, for present purposes it is to be assumed that the second version of his report represents his professional opinion. The proper conclusion may be that international standards do not provide significant guidance; or, alternatively, it may be that Mr Willis has not given sufficient thought to those standards; or there may be other appropriate inferences of which the court is presently unaware. Taken at face value, even with the benefit of the analysis conducted by the Defendant Mr Willis expresses opinions which are capable of acceptance and which, if accepted, may be useful to the court.
8. The Defendant attempts to meet the suggestion that Mr Willis' report may be useful by its fourth main line of submission, which is that the report does not deal with pleaded allegations. At paragraph 47 of its skeleton argument the Defendant lists seven assertions in Mr Willis' report which it submits do not relate to any pleaded allegation in issue in the proceedings. Without expressing any final or concluded view, I did not find Mr Layton QC's attempt to link Mr Willis' assertions to pleaded issues convincing in five of the seven examples addressed by the Defendant, the exceptions being those at paragraph 47 (c) and (e). I emphasise that this is not a concluded view or ruling; but my conclusion is that there are at least some matters in Mr Willis' report which do not appear to relate to pleaded issues. If and to the extent that Mr Willis has raised matters in his report which are not the subject of pleadings, that will be wasteful of his time and will not assist the Claimants. It also poses a dilemma for the Defendant if it is required to provide responsive evidence, the dilemma being whether to address the pleaded case which it has to meet or the matters raised in Mr Willis' report or both. That dilemma is not unique to the circumstances of this case and can be managed.
9. The last main line of objection is that the Defendant will be put to substantial expense if it is required to respond to Mr Willis' report. In support of that submission the Defendant has provided a schedule of the estimated additional costs that would be incurred in the event that Mr Willis' report was to be admitted. I agree with Mr Layton's characterisation of that schedule as being "flamboyantly extravagant". The allocation of putative costs to be incurred on counsel's fees in the course of the trial is, on its own, so far from being justifiable as to cast doubt upon the basis of compilation of the rest of the estimate. I derive no assistance from the schedule but I accept that there will be additional costs if the Defendant chooses to respond to Mr Willis' evidence. I am not satisfied that, in the context of the overall scale of resources being devoted to this action, the additional costs should be a prohibiting factor.
10. Viewed overall I am not prepared to rule at this stage either that Mr Willis lacks proper expertise or that his report contains no material that will be of assistance to the court. Given that conclusion, the Claimants argument based on inequality of arms becomes very potent. While it is true that the Claimants could retain expertise in the background, it is entirely foreseeable that issues may arise in the course of a ten-week trial where (quite apart from the present content of his report) the ability to call upon someone as a witness who has knowledge of how pipelines can and should be installed will be important for the Claimants. In those circumstances I consider that the balance comes down clearly in favour of admitting his report.
11. That leads to the question of responsive evidence. I have referred to the dilemma facing the Defendant given its submissions that Mr Willis' evidence is irrelevant and does not address pleaded issues. It is a matter for the Defendant to decide whether, that being its view of Mr Willis' evidence, it chooses to respond with further evidence of its own. Clearly it should have permission to do so if it wishes. I therefore direct that the Defendant shall have permission to obtain and serve evidence that is responsive to Mr Willis' report subject to any further submission, that evidence shall be served within two months of the date of handing down this judgment. Such evidence, whether evidence of fact or expert evidence, shall clearly identify at all material points whether it is addressing a pleaded allegation (in which case the relevant allegation and section of pleadings shall be identified) or whether it is addressing matters raised by Mr Willis which are said not to be pleaded (in which case the relevant passages of Mr Willis' report being addressed shall the identified). This permission does not extend to allow the Defendant simply to open up a generalised new front which is not responsive to Mr Willis' report. The Defendant will be permitted to rely upon evidence which is responsive in the way that I have outlined. If issues arise as to the admissibility of any responsive evidence served by the Defendant that will be resolved at a later hearing.