Blackpool Borough Council v Volkerfitzpatrick Ltd and Range Roofing and Cladding Ltd & Ors

Expert evidence may be excluded where an expert’s lack of independence makes the evidence inadmissible, but exclusion is a serious and proportionate response. The court must distinguish between expert evidence properly so called and factual testing or investigative work undertaken by a testing house. The full obligations applicable to a CPR Part 35 expert do not automatically apply to a testing house unless the court has directed that it act as a single joint expert. An expert has a duty to disclose material investigations and results relied upon, but no general duty to provide fellow experts with a running commentary on investigations. Where misconduct is established, the court should consider narrower remedies, including excluding particular results or reducing the weight of the evidence.

Blackpool Borough Council claimed approximately £6 million from Volkerfitzpatrick Ltd concerning the design and construction of a tram depot. Volkerfitzpatrick applied to exclude the claimant’s structural engineering and corrosion experts, Mr Davis and Dr Clarke, alleging compromised independence arising from private communications with Socotec and separately instructed testing.

The application also alleged that the experts had improperly interfered with testing and that Dr Clarke had criticised testing methodology after directing the testing. The issue was whether the alleged conduct justified excluding the experts’ evidence before trial, or required a more limited response.

1. Application refused. The alleged conduct did not justify excluding Mr Davis’s or Dr Clarke’s evidence. Nor did it justify striking out the claimant’s claims.
2. The court accepted that expert evidence may be inadmissible where the expert has failed to comply with the duties of independence and impartiality. Whether exclusion is appropriate is fact-sensitive and must be assessed proportionately, particularly at an interlocutory stage.
3. Socotec was not a CPR Part 35 single joint expert. It had been engaged to carry out mechanical inspection and testing under an agreed method statement. It was not instructed to exercise expert judgment or express opinions, and the court had not directed under CPR Part 35.7 that it act as a single joint expert. The restrictions on unilateral communication with a single joint expert therefore did not apply.
4. The case-management order contemplated joint testing and the proper course would have been to seek agreement, followed if necessary by an urgent application to the court, before arranging further unilateral testing. That was good practice, but the decision to instruct Socotec separately was not a deliberate breach of an express court order.
5. There was no general obligation on the claimant to notify the other parties before arranging testing of its own property. Equally, a Part 35 expert was not required to give fellow experts a running commentary on investigations. The expert had to disclose and identify material results relied upon in the report, whether favourable or unfavourable, and make those results available. The further results were disclosed promptly once available.
6. Even if the experts’ involvement had amounted to misconduct, the absence of evidence that the testing was intended to produce skewed results or an unfair litigation advantage meant that exclusion of all their evidence would have been disproportionate. Possible alternatives included excluding reliance on the additional results or treating the conduct as affecting weight. Dr Clarke’s more limited involvement would in any event have required separate consideration.
7. Dr Clarke’s criticism concerned the interpretation and suitability of magnetic thickness data for assessing pitting corrosion, not the reliability of Socotec’s testing. That was a proper matter for expert opinion.