Dana UK AXLE Ltd v Freudenberg FST GmbH

Expert evidence is permitted by the court and is subject to strict duties of independence, objectivity, transparency and equality of arms. Experts and instructing parties must ensure that material instructions, information and documents are identified and made available to experts of like discipline. Direct and unrecorded communications between a party and its experts cannot be treated as immaterial where they may influence the opinions or provide information unavailable to the opposing experts. Permission to rely on expert evidence may be refused where serious breaches of procedural orders, Civil Procedure Rules 1998 and applicable guidance undermine the level playing field or the court’s confidence in the evidence.

The claimant brought a claim concerning the alleged premature failure of automotive pinion seals supplied by the defendant. During the trial, the claimant applied to exclude the defendant’s technical expert evidence.

The application arose from late service of the reports, failures to identify materials and instructions provided to the experts, undisclosed site visits, missing records of communications and deficiencies in identifying the sources of data and opinions. Further disclosure revealed extensive direct contact between the defendant’s personnel and its experts, including during the period of expert discussions and preparation of the joint statement.

The central issues were whether the defendant had breached the conditions imposed when permission to rely on the reports was granted and whether the breaches of Part 35 and associated guidance justified exclusion.

1. Application granted. The defendant had seriously breached paragraphs 1.1–1.3 of the PTR Order. It had failed to identify all materials and information supplied to its experts, disclose documents and notes arising from site visits, and identify the sources of data and information relied on in the reports. These were substantive failures because the court had to know whether experts of like discipline had worked from the same material.
2. The principle stated in Imperial Chemical Industries Ltd v Merit Merrell Technology Limited [2018] EWHC 1577 (TCC) was applied: experts of like discipline should have access to the same material, and no party should provide material to its expert which is unavailable to the opposing expert. The requirement reflects equality of arms and the overriding objective.
3. Under CPR Part 35, Practice Direction 35 and the 2014 Guidance, expert evidence must be independent, objective and unbiased. The expert’s overriding duty is to the court. Material instructions, whether written or oral, must be transparently identified. Parties cannot avoid those requirements by communicating directly with experts without solicitor involvement or adequate records.
4. The defendant’s experts had engaged in extensive unrecorded communications with the defendant’s technical personnel, attended undisclosed site visits and, in the case of one expert, appeared to seek technical guidance and approval concerning the content of his report. Communications continued during the critical period between expert meetings and the joint statement. The conduct materially undermined confidence in the independence and reliability of the reports.
5. The breaches of the PTR Order were serious, unexplained and sufficient to deprive the defendant of permission to rely on the reports. The breaches of Part 35 and the related guidance would independently have justified refusal of permission. The defendant’s technical expert evidence was excluded.