| Date | 2 September 1999 |
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| Judgment | Stevens -v- Gullis, CA 27 July 1999 |
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| The Issue | Role of the expert witness in litigation under the new Civil Procedure Rules. |
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| Implication |
The importance of parties and their experts to co-operate and to comply with the new rules of procedure of the court demonstrating that the new rules can radically reduce cost and delay in appropriate cases. |
printThe new Civil Procedure Rules came into effect on Monday 26 April 1999. The aims of this reform instigated by Lord Woolf are to modernise court procedure to create a fairer, cheaper and more efficient dispute resolution process. One of the key elements of the new rules concerns the conduct and practice of expert witnesses. It has long been considered that expert witnesses have been a significant cause of delay and unnecessary cost in litigation. This is particularly so in complex technical litigation such as engineering and construction. The Civil Procedure Rules provide means by which the court can tightly control the evidence brought to the case and give the court draconian powers in the event that the parties and experts fail to meet the requirements of the court. These matters were examined in the recent case of Stevens -v- Gullis. Stevens was a builder that carried out works for Gullis at premises in mid-Glamorgan. He claimed approximately £8,000 plus VAT for work done and material supplied which had been certified by the architect but unpaid. As is so often the case there was doubt about the execution and form of the contract but it was contended by Gullis that this was in the form of a JCT 1980 contract. An architect had supervised the work, issued instructions and certified practical completion. Upon receipt of the contractor's claim Gullis prepared a counter-claim for a sum in excess of £127,000 under various heads including defective work, incomplete work and delay in completion. To enable him to do this he had engaged a Mr Isaac to prepare a series of schedules identifying the works said to form the basis of the counter-claim. Mr Isaac was engaged as expert witness in the proceedings. In April 1998 the court ordered that there should be an exchange of expert reports not later than September 1998, failing which the reports would not be permitted to be given in evidence at the trial. The experts were also ordered to meet with a view to identifying the areas of agreement and/or disagreement and to set these down in a joint memorandum. These dates were not met but finally in November 1998 the experts held a meeting. Subsequent to that meeting, a Memorandum of Agreement was sent to by the other expert to Mr Isaac who, despite various reminders, never responded satisfactorily. In March 1999 the court ordered Mr Isaac to comply with paragraph 1.2 of the Practice Direction to Part 35 of the Civil Procedure Rules. In default of compliance of this Order, it was stated that the defendant, Mr Gullis, would be debarred from calling Mr Isaac as an expert witness.Paragraph 1.2 of the Practice Direction requires experts to 1. give details of the expert's qualifications. 2. give details of any literature or other material which the expert has relied upon. 3. give details of any tests or experiments which have been used by the expert. 4. where there is a range of opinion on the matters dealt with in the report, summarise the range and give reasons for the expert's own opinion. 5. give a summary of the conclusions reached. 6. contain a statement that the expert understands his duty to the court and has complied with that duty, and 7. give a statement setting out the substance of all material instructions upon which the expert has acted. Mr Isaac failed to comply with the order, and as a result the judge debarred the defendant from calling Mr Isaac as an expert. The effect of this order was crucial. Faced with an inability to call evidence as to the nature of the defects and omissions in the works which were alleged in the counter-claim, that claim would fail. The judge therefore gave a separate judgment dismissing the proceedings. The matter came before the Court of Appeal with none other than Lord Woolf himself presiding. Having invested so much of his personal interest in driving through the reforms, it was unlikely that he would rule that the new Civil Procedure Rules should be disregarded. Instead, he gave a clear ruling that as long as the powers are exercised by the court in accordance with the over-riding objective of the reforms, then the Court of Appeal would be reluctant to interfere with such decisions. Lord Woolf agreed with the conclusions of the trial judge "In my view it is in the interests of the administration of justice that Mr Isaac should not give his evidence in the circumstances which I have outlined. It is essential in a complicated case such as this that the court should have a competent expert dealing with the matters which are in issue between the Defendant and Third Party. Mr Isaac, not having apparently understood his duty to the court and not having set out in his report that he understands it, is in my view a person whose evidence I should not encourage in the administration of justice". Accordingly, the Court of Appeal dismissed the appeal.
CJ-9933
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