Case Management Conferences

Prior to and at the first case management conference in relation to the Technology and Construction Court

[rtbs name=”technology-and-construction-court”]There is an unresolved tension arising from the need for parties to instruct and rely on expert opinions from an early pre-action stage and the need for the Technology and Construction Court to seek, wherever possible, to reduce the cost of expert evidence by dispensing with it altogether or by encouraging the appointment of jointly instructed experts. This tension arises because the Technology and Construction Court can only consider directing joint appointments or limiting expert evidence long after a party may have incurred the cost of obtaining expert evidence and have already relied on it. Parties should be aware of this tension. So far as possible, the parties should avoid incurring the costs of expert evidence on uncontroversial matters or matters of the kind referred to in paragraph 13.4.3 below, before the first case management conference has been held. In cases where it is not appropriate for the Technology and Construction Court to order a single joint expert, it is imperative that, wherever possible, the parties’ experts co-operate fully with one another. This is particularly important where tests, surveys, investigations, sample gathering or other technical methods of obtaining primary factual evidence are needed. It is often critical to ensure that any laboratory testing or experiments are carried out by the experts together, pursuant to an agreed procedure. Alternatively, the respective experts may agree that a particular firm or laboratory shall carry out specified tests or analyses on behalf of all parties. Parties should, where possible, disclose initial or preliminary reports to opposing parties prior to any pre-action protocol meeting, if only on a without prejudice basis. Such early disclosure will assist in early settlement or mediation discussions and in helping the parties to define and confine the issues in dispute with a corresponding saving in costs. Before and at the first case management conference and at each subsequent pre-trial stage of the action, the parties should give careful thought to the following matters: • The number, disciplines and identity of the expert witnesses they are considering instructing as their own experts or as single joint experts. • The precise issues which each expert is to address in his/her reports, to discuss without prejudice with opposing parties’ experts and give evidence about at the trial. • The timing of any meeting, agreed statement or report. • Any appropriate or necessary tests, inspections, sampling or investigations that could be undertaken jointly or in collaboration with other experts. Any such measures should be preceded by a meeting of relevant experts at which an appropriate testing or other protocol is devised. This would cover (i) all matters connected with the process in question and its recording and (ii) the sharing and agreement of any resulting data or evidence. • Any common method of analysis, investigation or reporting where it is appropriate or proportionate that such should be adopted by all relevant experts. An example of this would be an agreement as to the method to be used to analyse the cause and extent of any relevant period of delay in a construction project, where such is in issue in the case. • The availability and length of time that experts will realistically require to complete the tasks assigned to them. (Note that the amendment to Civil Procedure Rules 35.4(3) permits the order granting permission to specify the issues which the expert evidence should address.) In so far as the matters set out in the previous paragraph cannot be agreed, the Technology and Construction Court will give appropriate directions. In giving permission for the reception of any expert evidence, the Technology and Construction Court will ordinarily order the exchange of such evidence, with a definition of the expert’s area of expertise and a clear description of the issues about which that expert is permitted to give evidence. It is preferable that, at the first case management conference or as soon as possible thereafter, the parties should provide the Technology and Construction Court with the name(s) of their expert(s).