A number of recent decisions canvass the ethical obligations of, and constraints upon, lawyers who find themselves assisting an expert – sometimes at their request and sometimes by necessity to get the job done – draft their report for delivery in litigation.
In Landel Pty Ltd v Insurance Australia Limited [2021] QSC 247 (Landel),Dalton J (now Dalton JA) addressed the issue squarely with an adjuration that lawyers avoid “coaching” but otherwise be ready to assist in producing an intelligible, and admissible, report.
In New Aim Pty Ltd v Leung [2023] FCAFC 67 (New Aim), the Full Court of the Federal Court – overturning the trial judge’s decision excluding an expert report for want of disclosure of lawyer involvement in drafting – observed that lawyer assistance may be acceptable in order to sensibly and reasonably achieve the outcome but ordinarily ought be disclosed on the face of the report or otherwise to the opposing party.
In Andrews v Kronospan Limited [2022] EWHC 479 (Andrews), Senior Master Fontaine of the UK Queen’s Bench Division – upon interlocutory application in a class action for injunctive relief and damages on account of alleged nuisance – ordered that the plaintiff class members be precluded from relying at trial upon evidence from their longstanding liability expert on account of the plaintiffs’ solicitors illicitly conferring with such expert in and about the drafting of the “joint statement” by the respective experts (referred to in Australia as a “conclave report”) in contravention of the procedural rules precluding expert – lawyer contact in that space.
In Landel, the court wrote concerning a poorly drafted report (at [19]-[20]:
…[W]hile lawyers must not coach expert witnesses, or influence the substance of an expert report so that it favours their client, it is permissible, and usually desirable, that lawyers do become involved in the editing of expert reports so that they present material in a way which is accessible and comprehensible, and do not contain irrelevant material. … In this case, Dr Macintosh’s reports are prolix and disorganised. There ought to have been conferences between Dr Macintosh and the plaintiffs’ lawyers before they were filed to see what could be done to improve these types of problems. Conferences like this are a proper, necessary part of preparing a case. In a proceeding like this I would expect that attention to have come from both the solicitors and counsel briefed in the matter.
(emphasis added)
In New Aim, the five member appellate court wrote of the lawyer’s assistance afforded the expert in drafting the report:
[120] There is not one rule or practice which covers all experts or all situations. For example, in the typical case where medical opinion evidence is required, the medical expert would ordinarily draft his or her own report. The same is generally true of an expert valuer preparing a valuation or an accountant preparing a report about economic loss. There may be discussion in relation to drafts of the report, but one would ordinarily expect the report to be drafted by the expert rather than the legal practitioner. Nevertheless, a number of situations might arise where legal practitioners are involved in the process of recording an expert’s evidence, including by preparing or drafting the report. For example, there may be physical, language or resource difficulties. Where these situations arise, care must be taken to ensure that the legal practitioner does not suggest what the expert’s evidence should be and that the report is drafted from what the expert has communicated to the legal practitioner as fact or what the expert has assumed or what the expert’s opinion is. Leaving aside formal matters or instructions or assumptions the expert is required to make, it is difficult to conceive of a situation in which a legal practitioner, acting appropriately and ethically, could draft an expert’s report otherwise than on the basis of what the expert had communicated to the legal practitioner to be his or her evidence.
[121] The primary judge observed at [76] that, if legal practitioners are involved in the drafting of an expert report that fact must be disclosed in the expert report. This may well be desirable, forensically or otherwise, but there is no legal obligation as such to do so. Whether there is an ethical obligation to do so depends on the particular circumstances.
[122] The primary judge also observed at [76] that all correspondence relating to the preparation of the report must be disclosed. Again, this might be desirable, but there is no legal obligation as such to do so. Again, whether there is an ethical obligation to do so depends on the particular circumstances.
[123] As to the primary judge’s observation that any oral advice conveyed by a legal practitioner to the expert should be documented and disclosed in the expert’s report, the legal or ethical necessity of this depends on all of the circumstances, including the nature of the advice conveyed to the expert and the relevance of it, if any, to the report or opinions expressed.
(emphasis added)
In Andrews, despite the expert having been engaged by the party for three years and at great expense, the court – confronted with clear evidence that the expert, Dr Gibson, had closely liaised with his briefing solicitors concerning the proposed content of a conclave report, in breach of the UK Practice Rules – ordered that the briefing party be precluded from reliance on Dr Gibson’s opinion.
The Uniform Civil Procedure Rules 1999 (Qld) – like their interstate analogues – similarly proscribe the conclaving expert and the original briefing solicitor or counsel conferring apropos of drafting of the experts’ joint conclave report: r 429A(2).
The court wrote:
[17] The Claimants having accepted that there have been “serious transgressions” of the relevant rules and practice directions, the issue for me to determine in this case is the sanction, if any, to be imposed, in accordance with guidance given in the authorities. I draw on the authorities for some assistance.
[18] The most recent decisions are those in BDW (see Paragraph 12 above)and Dana UK Axle Ltd v Freudenberg FST GmbH [2021] EWHC 1413 (TCC). In BDW the defendant’s expert in geotechnical engineering revealed in cross examination at trial that he had sent a first draft of the joint statement to the defendant’s solicitors and having received feedback, had made some changes to that draft as a result. The judge concluded (at [18]), that this was “a serious transgression” of CPR 35PD paragraph 9. The judge upheld the complaint that it was quite inappropriate for independent experts to seek input from their client’s solicitors into the substantive content of their joint statement or, for that matter, for the solicitors either to ask an expert to do so or to provide input if asked, save in the limited circumstances referred to in paragraph 13.6.3 of the TCC Guide. However he concluded that the expert was genuinely unaware that his conduct in this respect was inappropriate, and that there was no basis for considering that he had modified in any significant way the substance of his opinion as discussed with the other party’s expert. Accordingly no sanction was imposed on the expert.
[19] The judge stated at [18]:
“… it is important that all experts and all legal advisers should understand what is and what is not permissible as regards the preparation of joint statements. To be clear, it appears to me that the TCC Guide envisages that an expert may if necessary provide a copy of the draft joint statement to the solicitors, otherwise it would not be possible for them to intervene in the exceptional circumstances identified. However, the expert should not ask the solicitors for their general comments or suggestions on the content of the draft joint statement and the solicitors should not make any comments or suggestions save to both experts in the very limited circumstances identified in the TCC Guide. That is consistent with the fact that any agreement between experts does not bind the parties unless they expressly agree to be so bound (see Part 35.12 (5)). There may be cases, which should be exceptional, where a party or its legal representatives are concerned, having seen the statement, that the experts’ views as stated in the joint statement may have been infected by some material misunderstanding of law or fact. If so, then there is no reason in my view why that should not be drawn to the attention of the experts so that they may have the opportunity to consider the point before trial. That however will be done in the open so that everyone, including the trial judge if the case proceeds to trial, can see what has happened and, if appropriate, firmly discourage any attempt by a party dissatisfied with the content of the joint statement to seek to reopen the discussion by this means.”
…
[22] Dana concerned very serious breach of the rules by the defendant’s three technical experts, which was not revealed in full until part way through the trial. This case involved the most serious behaviour by those experts, some of which had previously been the subject of an order granting relief from sanction subject to certain conditions. Not only did the judge find that the experts had not complied with those conditions, so that the defendant no longer had the court’s permission to rely on those experts, but she considered that the experts’ breaches of Part 35, 35PD and the CJC Guidance were so serious that they would be sufficient in themselves, without the breach of the conditions imposed by the previous order, to justify the refusal of the court to allow the defendant to rely on its technical experts (at [87]).
[23] Mrs Justice Joanna Smith referred in her judgment to two previous authorities at [66]-[68]:
“66.… I should reiterate what was said by Fraser J in Imperial Chemical Industries Ltd v Merit Merrill Technology Ltd [2018] EWHC 1577 at [237];
“The principles that govern expert evidence must be carefully adhered to, both by the experts themselves, and the legal advisers who instruct them. If experts are unaware of these principles, they must have them explain[ed] to them by their instructing solicitors. This applies regardless of the amounts in stake in any particular case, and is a foundation stone of expert evidence. There is a lengthy practice direction to CPR part 35, practice direction 35. Every expert should read it.”
67. Fraser J went on to set out some examples of the application of the well known principles in The Ikarian Reefer [1993] 2 Lloyds LR 68…. For present purposes, I note the first duty of an expert witness in a civil case as identified by Creswell J (at page 81) in The Ikarian Reefer:
“Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (Whitehouse v Jordan [1981] 1 WLR 246 at 256, per Lord Wilberforce)”
[24] In my judgment the breaches of Rule 35, Practice Direction 35 and the CJC Guidance by both the Claimants’ solicitors and Dr Gibson in respect of appropriate conduct relating to the period of joint discussions preparatory to a joint statement being produced by experts, were more serious than in BDW, where there was only a single communication between the expert and the solicitors. Here there has been continuous contact, soliciting and provision of comments on the various progressive drafts of the joint statement, and provision of information on the joint discussions.
[25] The facts in Dana concerned a particularly egregious example of the most flagrant breaches by the experts concerned, where technical input was sought and provided to the experts by the party by whom they were instructed at every stage of the process, without the knowledge of the other party. The judge would clearly have had no other option but to refuse the defendant permission to rely on those experts. The facts in this case are not comparable to those in Dana, but the principles applied are equally relevant.
[26] In this case there were continuing discussions either by telephone or email or by written commentary on the draft joint statement in its various progressions from 26 May 2021 to June 2021 and recommencing in November 2021. Although the majority of the total of 68 comments noted on the draft joint statements relate to typographical and formatting issues, it is accepted by the Claimants there were at least 16 comments relating to “advice and suggestions as to content” in respect of the joint discussions/draft joint statement….
….
[32] The other factors which I consider should be taken into account in determining what the sanction should be are as follows:
i) The Claimants’ solicitors failure in November 2021 to reveal the full extent of their communications with Dr Gibson, the correspondence suggesting that the first contact had been on 17 November 2021, and their reluctance to do so until the persistence of the Defendant’s solicitors made it apparent that they would not let the issue go.
ii) The Claimants’ solicitors informed the Defendant’s solicitors that the only reason for that contact by Dr Gibson on 17 November was “to notify us that Dr Gibson/Dr Datson’s communications regarding their joint statement were being resumed” which was clearly only part of the picture. It is apparent, having seen Dr Gibson’s email of 18 November 2021 sending the next version of the draft joint statement [1/66] and the telephone attendance notes of 17 and 18 November 2021 [1/65, 67], that Dr Gibson was intending to resume his previous conduct in providing information about the joint discussions and soliciting assistance from the Claimant’s solicitors. I therefore do not consider that Ms Eedy’s [the Claimant’s solicitor’s] explanation as to why there was no disclosure of the previous discussions with Dr Gibson in May and June 2021 is satisfactory…
iii) Dr Gibson has not informed the court of the reason for his conduct, i.e. whether he was unaware of his obligations as an expert, and if so, why, or whether he was aware, in which case his reasons why he thought it appropriate to transgress those obligations.
iv) Dr Gibson produced his addendum report in July 2021 at a time when Dr Datson was unaware of his prior discussions with the Claimants’ solicitors.
[33] The factors in favour of permitting the Claimants to retain Dr Gibson as their expert are as follows:
i) Dr Gibson has been involved for over 3 years, and I am informed that some £255,000 have been spent on his fees.
ii) If permission to rely on Dr Gibson is revoked that would be a severe blow to the Claimants, a total of 159 households, all likely to be of modest means, who will be adversely affected by a decision to revoke permission.
iii) Even if the Claimants are permitted to rely on alternative expert evidence it will involve them in considerable additional costs and cause further delay to an already long running case.
iv) The Defendant is now aware of the extent of the discussions with Dr Gibson, so that the Defendant can cross examine Dr Gibson at trial in relation to whether he has changed his opinion as a result of those communications.
Conclusion
[34] Taking all the above factors into account, and applying the overriding objective, I have concluded that the serious transgressions by the Claimants’ solicitors and Dr Gibson are such that the court has no confidence in Dr Gibson’s ability to act in accordance with his obligations as an expert witness. The basis upon which the Claimants received permission to rely upon Dr Gibson as an expert witness, namely his duties under CPR 35.3, 35PD paras. 2.1 and 2.2, has been undermined. Accordingly I consider that it is appropriate, and not disproportionate, to revoke the Claimants’ permission to rely on his evidence. I consider that it must follow that permission to rely on Dr Gibson as a dust modelling expert is also revoked. The fact that this is group litigation does not dissuade me from that course. It is important that the integrity of the expert discussion process is preserved so that the court, and the public, can have confidence that the court’s decisions are made on the basis of objective expert evidence. This is particularly important where, as here, the expert evidence is of a very technical nature so that the court is heavily reliant on the expert evidence being untainted by subjective considerations.
…
(emphasis and square brackets added)
The ethical lesson evident in these cases is that lawyers – counsel and solicitors – need be thoughtful and exercise clear appreciation of where the lines are drawn – by the ethics and procedural rules concerning expert witnesses – such that they do not approach, let alone cross such metaphorical lines. The price of not doing so could be either preclusion of their client being able to rely upon the elicited expert opinion, regulatory censure, or both.
