Penningtons Manches Cooper has ‘apologised unreservedly’ to the High Court for compromising the independence of an expert witness. The UK and international firm accepted it made amendments to an expert’s statement and removed metadata ‘so it doesn’t show PMC made the amends’, the High Court heard.
The case concerns a claim by Jenni and Littleton Glover against insurance company AXA XL. The Glovers are seeking a declaration that they are entitled to an indemnity from AXA XL under a policy issued in their favour, while AXA XL claims there are exclusions in the policy. Issues as to the cause, nature and extent of damage done during renovation works at the Glovers’ west London property are central issues, the High Court heard.
PMC, representing the Glovers, obtained permission to rely on the evidence of structural engineering expert Andrew Hardy. But RPC, representing the insurance company, became concerned about Hardy’s evidence and asked PMC to confirm he had not been provided with instructions as to the substance or wording of a draft experts’ joint statement.
Peter Stockill, the partner at PMC with overall supervision of the Glovers’ claim, acknowledged in a statement to the court PMC did not comply with the applicable rules and guidance. Stockill accepted PMC ‘made comments on and proposed amendments to’ four drafts of the joint statement which it was not permitted to make.
‘This non-compliance arose through a failure to understand the applicable rules and guidance and I apologise unreservedly to the Court and AXA XL for this’, Stockill added. He emphasised that neither the claimants nor counsel had any involvement in the joint statement process.
The deletion of the metadata was explained as occurring under time pressure in circumstances where the wish was not to share comments with others, the court heard. Stockill said: ’We also did not wish to be conspicuous about our involvement because we did not want to turn the joint statement process into a lawyer-led process.’
Simon Lofthouse KC, sitting as a judge of the High Court, said the actions ‘had precisely (and predictably) the very consequence Mr Stockill was striving to avoid’. He added: ‘What is clear from the correspondence is PMC believed it was permissible to amend the draft statement where it was thought the content did not reflect the pleaded issues and said the same to RPC. Such a belief, however misguided, is not the same as a deliberate and knowing disregard of the applicable principles.
‘On the evidence before the court it is clear it cannot be satisfied as to the independence of Mr Hardy in the joint statement process, however I should make clear that I have no evidence before me from Mr Hardy himself.’
The claimants were given permission to rely on a replacement expert witness. The judge said this could be done without imperilling a trial date in September. ’Whilst there can be no excuse for the conduct of the claimant’s solicitors, justice is best served by maintaining the trial date if at all possible’, Lofthouse said.
