PERMISSION NOT GRANTED TO CALL EMPLOYMENT EXPERTS: THE RELEVANT PRINCIPLES CONSIDERED

In Various Claimants -v- Sir Robert McAlpine [2016] EWHC 45 (QB) Mr Justice Supperstone and Master Leslie considered the rules and case law in relation to the need to call expert witnesses in detail.

KEY POINTS

  • The claimants were refused permission to rely upon an expert in relation to future earnings.
  • The court felt that the proposed report did not comply with the Rules or Practice Direction.
  • The costs and expense involved in the “research” necessary was disproportional. The court considered, in particular, the complexities involved in the defendants need to access data to challenge the findings.

THE CASE

The action is against a number of construction firms relating to the alleged “blacklisting” of workers. One of the issues is the consequent loss of earnings that these workers suffered.

THE APPLICATION IN RELATION TO EXPERT EVIDENCE

The application was originally a very wide one and then narrowed. Essentially the claimants sought permission to rely on evidence from employment experts.

  1. By an Application Notice dated 19 June 2015 the Claimants had applied (in the terms of the draft order):

“… to rely at trial on a written report in relation to each Lead Claimant and Reserve Lead Claimant on the estimation of that Claimant’s expected career earnings if he had not been blacklisted. Such reports shall be jointly authored by the following experts in the identified fields:

(a) A labour economist, namely Dr Victoria Wass;

(b) An expert in the field of actuarial science and statistics, namely Dr Zoltan Butt;

(c) Experts on working patterns, practices and wages in the construction industry, namely Professor Linda Clarke and Dr Ian Fitzgerald.”

Following a hearing on 14 and 15 July 2015 the Claimants had sought to rely only on a single report of Dr Wass.”

THE LEGAL BACKGROUND

What makes this case useful is the succinct summary of the law relating to the adducing of expert evidence.

“The Legal Framework
  1. Section 3 of the Civil Evidence Act 1972 (“the 1972 Act”) provides, so far as is material, as follows:
“(1) Subject to any rules of court made in pursuance of Part 1 of the Civil Evidence Act 1968 or this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence…
(3) In this section ‘relevant matter’ includes an issue in the proceedings in question.”
  1. CPR Part 35.1 provides that “expert evidence shall be restricted to that which is reasonably required to resolve the proceedings”.
  2. CPR Part 35.10(3) provides that “the expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written” (see also Practice Direction (“PD”) 35, para 3.2(3); and para 55 of “Guidance for the Instruction of Experts” (“the Guidance”), referred to in para 1 of the PD).
  3. The Guidance (at para 13) states that “Experts should take into account all material facts before them”.
  4. Paragraph 56 of the Guidance states:
“Where tests of a scientific or technical nature have been carried out, experts should state:
(a) the methodology used; and
(b) by whom the tests were undertaken and under whose supervision, summarising their respective qualifications and experience.”
  1. PD 35, para 3.2(6) provides that an expert’s report must:
“where there is a range of opinion on the matters dealt with in the report—

(a) summarise the range of opinions; and

(b) give reasons for the expert’s own opinion.”

(See also the Guidance, para 59).
  1. In Barings plc v Coopers and Lybrand [2001] EWHC 17 (Ch D) Evans-Lombe J (at para 45) stated the following propositions:
“… expert evidence is admissible under section 3 of the Civil Evidence Act 1972 in any case where the court accepts that there exists a recognised expertise governed by recognised standards and rules of conduct capable of influencing the court’s decision on any of the issues which it has to decide and the witness to be called satisfies the court that he has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of those issues. Evidence meeting this test can still be excluded by the court if the court takes the view that calling it will not be helpful to the court in resolving any issue in the case justly. Such evidence will not be helpful where the issue to be decided is one of law or is otherwise one on which the court is able to come to a fully informed decision without hearing such evidence.”
  1. In JP Morgan Chase Bank v Springwell Navigation Corporation [2006] EWHC 2755 (Comm) at para 19 Aikens J said:
“It is well established that in order to fulfil the requirement of CPR Part 35.1, a court must be satisfied that the expert evidence is properly admissible and will genuinely assist the trial judge in determining the matters which are in issue. The burden of establishing these two requirements rests upon the party that seeks permission to adduce the expert evidence concerned: see Clarke v Marlborough Fine Arts (London) Ltd [2002] EWHC 11 (Ch) at para 5, per Patten J.”
  1. In Singh Mann v Chetty [2001] C.P.Rep 24 Hale LJ (as she then was) observed (at para 17) in relation to CPR 35 that:
“… the court has to make a judgment on at least three matters: (a) how cogent the proposed expert evidence will be; (b) how helpful it will be in resolving any of the issues in the case; and (c) how much it will cost and the relationship of that cost to the sums at stake.””

THE DECISION

What is unusual about the application is the the Court spent a considerable time looking at the draft reports and the methodology used.  The defendants were highly critical of that methodology.
  1. We have given careful consideration to the November report of Dr Wass (together with the 7 December Response and the Supplementary Report), and the submissions of counsel.
  2. The whole approach in the November report is very different from the approach in the June proposal. In her Supplementary Report (at para 4.5) Dr Wass said:
“In advance of access to the NES/ASHE microdata I did not know whether regression analysis would be possible.”
Mr Hendy says Dr Wass is not to be criticised in achieving the task she set out to achieve in June by a technique which she did not realise was possible until the Autumn of this year. We observe that since before December 2014 Dr Wass has in fact been considering how best to estimate the Claimants’ potential earnings if they had not been blacklisted. However the real problem with what is now being proposed is that it is, as she describes it, “research” (see para 28 above). We are not satisfied that “there exists a recognised expertise governed by recognised standards and rules of conduct” (see para 8 above) in respect of the proposed methodology.
  1. Mr Hendy made the point that this is an application for permission to adduce expert evidence; it is not a trial of the merits of Dr Wass’s report. That is correct. However we have felt it necessary to give the report the degree of examination we have, first, in the light of the detailed competing submissions from counsel; second, in order to test its cogency (see dictum of Hale J in Singh Mann at para 10 above); and third, in order properly to assess whether this expert evidence is “reasonably required to resolve the proceedings” (see CPR 35.1 at para 3 above).
  2. Further we are not satisfied that what is proposed will assist the court in determining the matters which are in issue. We are not persuaded that Dr Wass’s new approach is sufficiently more accurate than using traditional centile methods in circumstances where (1) she has ignored the Claimants’ prior earnings, (2) there is no microdata for the period before 1990 and therefore the centile method is used for half the relevant period for a significant number of lead claimants; and (3) there is still the need to conduct Stage 2 which we are not confident will be as easy to do as Dr Wass suggests (see para 66 below). We do not consider that the time and expense that will be involved in conducting the analysis proposed by Dr Wass is proportionate.
  3. In our view Dr Butt’s part of the November report does not comply with the requirements of either the PD or the Guidance. It does not set out properly the facts, the modelling or the methodology used, or the discussions between himself and Dr Wass. All that Dr Butt sets out is the equation that he has used; and none of his workings are exhibited. Further the Defendants may well, as Mr Nourse thinks, have considerable difficulty in identifying an academic with specialist expertise similar to that of Dr Butt who, given the limited explanation of Dr Butt’s contribution to the report, can assist them in adequately responding to that part of the report in time for the start of the trial.
  4. The different specialisms of Dr Wass and Dr Butt are likely to require the Defendants to instruct two persons with similar expertise, both of whom will require access to the ONS data. Mr Nourse raised in clear terms the Defendants’ concern about access to the data at the July hearing (see para 23 above). Access to the data is even more critical now that Dr Wass has adopted a new approach in the November report. In our view the Defendants have legitimate concerns about access to the data. We do not think that any of the suggestions made by Mr Hendy or Mr Tomlinson meet Mr Nourse’s point that the Defendants are entitled to have access to any data they may wish to use which may involve multiple applications between now and the conclusion of the trial. We consider that there are likely to be real practical problems in obtaining access to the microdata.
  5. In the June proposal Dr Wass set out what was to be done at stage 2, then, as she proposed, by Dr Clarke and Dr Fitzgerald (see para 13 above). We are not satisfied that that work can as easily be done by lawyers as Dr Wass suggests. Further, for the reasons put forward by Mr Nourse (see para 41 above) we do not consider that the work that will be done on stage 1 will assist the Court materially without the work on stage 2. The June proposal involved a two-stage process to “provide valuations tailored to the circumstances of the individual Lead Claimants” (see paras 11-13 above).
  6. Finally there is no consideration in the November report of any alternative methodologies. Obvious alternatives are doing what Dr Wass was suggesting in the June proposal, or using ASHE 90 with some adjustments. In June she was proposing to disaggregate ASHE figures to be adjusted with the particulars of the particular claimant. There is no explanation in the November report as to why this does not remain a possible alternative approach. We agree with Mr Nourse that a serious omission from Dr Wass’s proposed exercise is its failure to use the Claimants’ prior earnings (say for three years prior to the start of the claim) as a factor in predicting future earnings.
  7. For the reasons we have given this application is dismissed.”
  1. until the full extent of the admissible evidence is finally determined.

RELATED POSTS ON EXPERTS

Permission to call experts

Experts generally

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