In Dana UK Axle Ltd v Freudenberg FST GmbH [2021] EWHC 1413 (TCC), the case revolved around the supply of allegedly defective pinion seals by FST to Dana, which were subsequently installed in axles fitted to a range of Jaguar Land Rover vehicle models.
FST served its technical expert evidence late. Nevertheless, Dana noted it would not object to FST's application for relief from sanctions as long as the defects in the reports of FST's experts would be fixed. Dana then set out the defects it had an issue with.
In contravention of paragraph 55 of the Guidance for the Instruction of Experts in Civil Claims 2014 (Guidance), the three expert reports failed to identify the documents on which the experts had relied. None of the reports included a list of documents provided by FST or its solicitors to each of the experts. In addition, technical information was provided to FST's experts long before it was given to Dana's experts.
In contravention of the TCC Guide (paragraphs 13.3.2 and 13.3.4), two of FST's experts visited factories operated by FST without putting Dana on notice and therefore depriving Dana's technical experts of a similar opportunity.
As FST's expert reports did not always provide reference to the document or source of data that they relied on, this caused prejudice to Dana's legal team in trying to read and understand the reports.
At the Pre-Trial Review, an order was made granting relief from sanction as to FST's late service of the three expert reports and allowing reliance on those reports at trial subject to FST's full compliance with the CPR.
Whilst FST served revised reports, Dana was not satisfied with FST's conduct and made an application on Day 7 of the trial for the court to exclude FST's technical expert evidence on the basis that FST was in breach of the Pre-Trial order and failed to comply with CPR Part 35 and its Practice Direction as well as the Guidance. To cut through the suspension, the Judge, Joanna Smith J, granted the application with her judgment focussed on FST's, its solicitors' and its experts' conduct.

FST's breach of the Pre-Trial order
It failed to give full details of all the materials given to its experts, whether by FST itself or its lawyers. Another worrying aspect what that "the Experts had unfettered and unsupervised access to the Defendant's personnel" and that they were provided with information by FST during calls and virtual meetings. Interestingly, there was no record however of such calls or meetings or of the actual nature of the information provided.
The Judge noted that where experts liaise directly with their clients to get information that is not recorded, "there can be no transparency around the information to which they have been privy and no equality of arms with their opposing experts of like discipline."

The Judge noted that it was "entirely unacceptable for Dana and the Court to discover during the course of the trial that FST's experts have not only engaged in site visits about which they did not inform Dana's experts at the time and in respect of which they have apparently kept no records, but also that there were, in fact, more site visits than had previously been disclosed in their reports."
The failure to identify sources of data was criticised by the Judge noting that she considered it to be a "paradigm example of what can go wrong if an expert is left to obtain information direct from his clients without legal involvement and, indeed, if that expert does not even require sight of the detailed information on which he then relies for the purposes of preparing his report."

FST's breach of CPR
The Judge criticised that there appeared to be a "free flow of information between FST and its Experts" without any gatekeeping role on the part of FST's solicitors. "This free flow of information appeared to have been taking place between the time of the joint expert meeting and the signing of the experts' Joint Statement, when the Experts … should not have been communicating directly with their client."

FST's experts then relied on the information during their report preparation. The Judge referred to paragraph 13.6.3 of the TCC Guide noting that this makes it clear that "legal advisers should not be involved in the negotiating or drafting of joint statements (as do the notes at CPR 35.12.2)." And the Judge criticised that the FST has directly influenced its experts' views.
The judgment stresses the importance that the parties fully comply with the CPR in the context of instructing technical experts and communications with the experts (which must be controlled) during litigation. There is a visible trend, and rightfully so, to ensure transparency and veracity of witness evidence, be it in light of the new rules introduced in relation to witnesses of fact or expert witnesses in light of the judgment in Dana v Freudenberg.

 
Theresa Mohammed, Partner, and Laura Lintott, Senior Associate at Trowers & Hamlins LLP