An Expert s Nightmare Trebor Bassett v ADT This case has a number of points of interest to adjusters in regard to court procedure, the brief when appointing experts (or indeed lawyers) and expert s duties. The full transcript is worth a read (lengthy at 146 pages). The citation no is [2011] EWHC 1936 (TCC) Alternatively if can be found at http://alpha.bailii.org/cgibin/markup.cgi?doc=/ew/cases/ewhc/tcc/2011/1936.html&query=trebor+and+bassett&meth od=boolean In essence this case is about a fire which destroyed Trebor Bassett s factory at Pontefract on 8th June 2005. It started as a small fire in the popcorn production area which the workers thought had been extinguished by applying a hose to the hopper and emptying pop-corn on the floor and stamping out the flames. After this the fire alarm sounded and the Fire Brigade were called. They failed to immediately inspect the affected area being told that the fire had been extinguished. However shortly afterwards it developed into a catastrophic fire which could only be fought defensively and which destroyed the building resulting in a 100m+ claim. Experts arguing for their favoured theory In the absence of fact three competing theories for the subsequent spread were advanced by various fire experts and became the subject of debate in view of the potential consequences of subrogation. The experts spent much of their time arguing for their favoured theory on the basis that was less improbable than the alternatives. Evidence showed that ADT, the defendants, were engaged, inter alia, to install a CO2 suppression system. Trebor Bassett had 1) declined to fit sprinklers 2) made an incorrect assumption over fire separation and 3) decided against installing a VESDA fire detection system protecting the conveyor area. All theories agreed that the fire started at the oil pop cooking pans, and ended at the south wall. Trebor Bassett s case suggested that fire spread via the elevator (where the CO2 system was in place). ADT had two theories and both involved a spread outside the hopper and elevator (where there was no fire prevention system). Smouldering popcorn bursting into flames wholly unlikely Mr Justice Coulson decided in favour of the claimants Trebor Bassett and that the cause was the original fire where stamping on popcorn to extinguish it just caused the fire to spread. The CO2 system should however have detected/suppressed this. He considered that both of the other two theories (smouldering popcorn bursting into flames in a bagged sleeve or the fire getting back into the elevator) to be wholly unlikely.
75% contributory negligence by winning claimant Trebor Bassett were not found blameless however and had contributed to the fire spread by failure to install sprinklers, failure to provide fire segregation and failure to train operatives in CO2 system operation. A high 75% contributory factor was applied. Failures in the legal process So much for the facts of the case. The relevant aspect for our purposes is strenuous route to get to that decision and the part that the experts (and their lawyers) played in effectively wasting the court s time. The case was heard at the Technology and Construction Court (TCC) and at the first CMC permission was given to call two experts each, one in fire suppression systems, and one in relation to forensic fire investigations. A preliminary list of liability issues was to be considered. The parties failed to comply with that direction and no list of issues was identified. The second CMC ordered that the experts prepare a joint statement and that subsequent reports would be limited to non- agreed points. Additional evidence from an architectural expert specialising in fire protection, safety in building construction and the spread of fire was allowed. Again, the parties and/or the experts failed in their response to directions and deadlines. These are clearly serious failures on the part of the participating lawyers in not complying with CMC directions which continued right through the court process. The experts fell out There were difficulties with the conduct of the experts meetings. The experts fell out. Quoting Justice Coulson Bluntly, I have to say that experts appointed in civil litigation have no business to fall out and to fail to comply with the orders of the court. Experts are there to provide evidence on technical matters in order to assist the court, and for no other purpose. If they take matters of personal disagreement to such a level, they are failing to provide that service. Both solicitors then abandoned the joint statements altogether, and instead got the experts to concentrate on their first and second round reports. Both sets were provided late; one just a month before the start of the trial. Additional oral evidence by the back door New dates were set for joint statements but none were provided even at the commencement of the trial. Instead, the parties jointly sought permission to allow each of the four principal experts (i.e. all of the experts except the last appointed claimants architectural expert) to provide an oral presentation to the court. Page 2
Justice Coulson continues It quickly became apparent to me that these presentations were designed to allow into evidence a variety of disparate matters, some of which were not even in the extensive reports produced by the four experts in question. (an) attempt on the part of the experts to express their opinions. Clearly he was not pleased. Not focused on the issues The joint statements were eventually produced. However they were of little or no use, because they were not focused on the issues between the parties. They were often unlinked to the particular matters of importance which the judge had to resolve. The correct procedure Justice Coulson then gave a review of what he considered to be the correct procedure based on the court orders. The directions given were, if I may say so, sensible and appropriate. In particular, they envisaged that the issues would be identified first, and would be the subject of the r35.12 statement. The reports could then focus on the issues on which the experts failed to agree. In that way, both the statements and the reports would assist the court in arriving at the answers to the relevant technical issues. The procedure adopted Instead, in breach of the court orders, the experts adopted a completely back-to-front process. They produced a first round of reports which bear all the hallmarks of having been prepared in a hurry, and which do not address many of the relevant issues. The second round of supplemental reports was used principally as a vehicle for another attempt at setting out the author s conclusions. There was then a court presentation, which was a third attempt at such a process (with some criticisms of the other side thrown in), and finally a joint statement which added nothing to the overall debate. As a result of all this floundering, the expert evidence was unfocused, and often unrelated to the real issues between the parties. In a claim allegedly worth 110 million, I found this approach to expert evidence unsatisfactory and unhelpful Particular criticisms He went on to make particular criticisms of four out of the five experts and these comments (which are not exhaustive) perhaps summarise the situation. It reads like something out of a satirical magazine and would be funny if it were not true: Fire Experts He produced a contemporaneous report which has not been disclosed. for a long time disclosure was refused on the grounds that were privileged. I reject that suggestion. It seems to me plain that Dr was appointed by the claimants insurers to investigate the cause Page 3
of the fire. In those circumstances, it could not be said that litigation was the dominant purpose of his investigation: With one exception, it is not possible to say what, if anything, Dr did on this case between June 2005 and the production of his report in January 2011. He certainly undertook no further tests he went to see the writer of the WYFRS (West Yorkshire Fire and Rescue Service) report, Station Manager Hemingway, in order to get him to contextualise his report This seems to have been nothing less than an unsubtle attempt to get SM Hemmingway to soften those parts of his report which were, on their face, contrary to the claimants interests in this litigation. This was not an appropriate task for an expert; He concluded that, although he had done no tests relevant to this theory, the fire had (in a way not explained in the report) produced a running liquid fire. He failed to set out his theory as to fire spread in a coherent and comprehensive fashion. Dr first report was dated 19 January 2011 (over 5 years after the fire). It was much too long, consisting of 75 pages, despite the fact that Dr had not carried out any tests at all and was really commenting on material that had long been generally available The difficulties with those tests, and the propositions to which they were said to give rise, were many and varied. First, they were not carried out by Dr, who did not even witness them. They were carried out by students at Edinburgh University, and for some time the only information that the claimants had about the tests came from a blog, taken from the internet, and written by one of the students, under the heading Today, We Have Been Mostly Burning Popcorn. CO2 Suppression System Experts Mr first report was dated 14 January 2011. It was again inordinately long, running to 76 closely-typed pages, and yet it failed to deal in a cogent way with the only issue His supplemental report is a paragraph-by-paragraph critique of Mr report, in which any semblance of the wood has been completely obliterated by the trees. Mr reports and oral evidence, graphically illustrated the failure on the part of the experts to get a grip with the real issues in this case at the outset. his reports seemed to operate on the basis that if the defendant had said X, then Mr had to try to demonstrate that the answer must be Y, no matter how peripheral the issue. It is an unfocused and unhelpful approach Page 4
Perhaps as a result of this pervasive deficiency in his written material, Mr oral evidence degenerated into bad-tempered bickering. He too was extremely partisan; he too had failed to get to grips with the principal issues Much of his initial report was taken up with criticisms of the claimants which did not form part of the pleaded allegations of contributory negligence, and were therefore irrelevant and inadmissible. the CFD modelling which had been carried out, not by Mr himself, but by a colleague The modelling was itself flawed. had a rather dismissive manner as a witness Justice Coulson s Summary the court has had to struggle with unsatisfactory and disparate expert evidence, often unrelated to the real issues, prepared and delivered in a variety of places and in an unacceptably partisan way. It has also led me, very unusually, to be dubious about the reliability of all of the expert evidence that has been presented to me A fairly damning summary. So what can we learn? Firstly as adjuster it may well be that your report is produced in court. All the judges comments to the experts apply equally to our reporting whether written or oral: a) Remember that our reports are probably disclosable unless issued under privilege and in contemplation of litigation. b) Investigate and test the evidence yourself. c) Be prompt evidence and opinion can be less effective if gathered late. d) Cover the issues logically and succinctly. Centre on the main issue(s). Keep it concise and to the point. e) Be complete not partisan. Look at the negative aspects as well as the favourable points. f) Consider the points of other experts in a rounded way. If experts cannot agree on any points then their expertise is likely to be called into question g) Report in an acceptable format. h) Stay within the brief and your own area of knowledge and expertise. i) Hearsay and theory should be denoted as such Page 5
j) Do not be argumentative let the facts speak for you. k) Be helpful not dismissive. l) Down to earth reporting is preferable to ethereal over-technical explanations. If you are involved a case which is in litigation request details of all directions agreed at a CMC to ensure that deadlines are met and appropriate reports are submitted. Press the lawyers for this if necessary. Inadequate presentation at Court or disregard for Court directions will not endear your claim/defence/evidence to the judge and will inevitably lead to enhanced costs and longer sessions. Ensure that any experts you use are correctly appointed, appropriately supplied with documentation and properly briefed. If you are the appointed expert review your personal duties. Since the advent of the Civil Procedure Rules expert duties have changed: a) Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation. b) Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate. c) Experts should consider all material facts, including those which might detract from their opinions. Duty to the Court The duty of the expert is to the court. Section 25.3 of CPR - Experts overriding duty to the court (1) It is the duty of experts to help the court on matters within their expertise. (2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid. Reporting In reporting there are now some accepted formats which make it easier for judges to assimilate the required information and indeed easier for the Expert to provide the required information. The main point however is that there is now a Statement of Truth you cannot now try to support your client s case with fanciful or possibility arguments that you do not believe to be true. Non-Adversarial Discussions Next after exchange of reports, if the court so directs, taking a non-adversarial approach meet, with the other expert and narrow down the issues. Page 6
Section 25.12 of CPR Discussions between experts (1) The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to (a) identify and discuss the expert issues in the proceedings; and (b) where possible, reach an agreed opinion on those issues. (2) The court may specify the issues which the experts must discuss. (3) The court may direct that following a discussion between the experts they must prepare a statement for the court setting out those issues on which (a) they agree; and (b) they disagree, with a summary of their reasons for disagreeing. Don t Upset His Lordship Above all do not upset the judge by inadequate preparation or inappropriate presentation - you might find yourself at the wrong end of a severe lashing as in this case. Thomas D Battell FCII, FCILA, MBEng., FIFAA, MAE Director Adjusting Solutions LLP +44 (0)20 7442 2204 tom.battell@adjustingsolutions.com Tom Battell is a Chartered Loss Adjuster and a Member of the Academy of Experts. The Academy of Experts is the premiere Professional Body for Expert Witnesses both in the United Kingdom and around the world Page 7