Judge rejects bid by defendant to have expert evidence ruled inadmissible in £6m breach of contract claim brought by council

A High Court judge has dismissed an application by a defendant company that a council bringing a £6m claim for alleged breaches of contract, in relation to the design and construction of a new tram depot, should not be permitted to rely upon the evidence of two experts.

In Blackpool Borough Council v Volkerfitzpatrick Ltd and Range Roofing and Cladding Ltd & Ors [2020] EWHC 387 (TCC) the defendant (Volkerfitzpatrick) claimed that the evidence of the local authority’s expert structural engineer, Mr Matthew Davis, and of its expert in corrosion, Dr Michael Clarke, was inadmissible because their conduct had demonstrated that it could not be relied upon as properly independent.

Volkerfitzpatrick has brought third party proceedings against the third party, Range Roofing and Cladding Ltd, which have very recently been compromised, together with fourth party proceedings against the fourth party, RPS Planning and Development Ltd, and fifth party proceedings against the fifth party, Caunton Engineering Ltd, both of which remain live.

The case was listed for trial over four weeks commencing 24 February 2020. It is a case which involves expert evidence in a number of disciplines.

The judge, His Honour Judge Stephen Davies, said that Blackpool was heavily reliant so far as liability is concerned upon the expert evidence of Mr Davis and  Dr Clarke.

On 29 January 2020 Volkerfitzpatrick made an application for orders that:

(a) Blackpool should not be permitted to rely upon the expert evidence of Mr Davis or Dr Clarke upon the ground that their evidence was inadmissible because their conduct had demonstrated that it could not be relied upon as properly independent; and

(b) in consequence all of the claimant's claims should be struck out on the basis that without this expert evidence the claimant could not hope to succeed in its claims (apart from some modest claims which had already been admitted).

The application was supported by the fourth party and the fifth party but was opposed by the claimant council.

The defendant claimed that, specifically, Mr Davis and Dr Clarke had:

• contacted Socotec, the jointly instructed testing house that carried out corrosion testing at the tram depot, privately and without copying other corrosion experts into their communications;
• acted on the claimant's behalf to procure testing directly relevant to these proceedings from Socotec without disclosing the existence of that testing to other corrosion experts;
• directed Socotec as to how its testing should be carried out in private communications;
• in the case of Mr Davis, directed Socotec to keep the existence of the privately procured testing secret; and
• in the case of Dr Clarke, taken objections to Socotec testing methodology in an expert report notwithstanding that Dr Clarke directed the manner in which testing was to take place".

The defendant’s solicitor claimed that "as a result of their conduct, Dr Clarke and Mr Davis cannot now be called as independent experts as they have fallen far short of the standards required by CPR Part 35. The defendant therefore applies for their evidence to be ruled inadmissible".

However, His Honour Judge Stephen Davies said that even considering all of the separate allegations in the round he did not consider that “they come anywhere near justifying the draconian order sought by the defendant and supported by the other parties”.

He therefore did not accede to the defendant's application.