How to come a cropper

Are you expert witness folk up to speed with the litigation rules? They came into force on 26 April. Let me tell you the story of one poor chap, a building surveyor called Steve Isaac, who certainly was out of touch. The case on which he was the expert surveyor started well before the new rules came into effect. But watch out: cases coming for trial after the watershed date are every bit as likely to have these civil procedure rules apply.

The case is an ordinary building dispute. The builder, Edwin Stevens, got on with the alterations and improvements to a Mr Gullis' premises in Bargoed, Mid Glamorgan. The architect, David Pile, issued the payment certificates under what was "arguably" a JCT80 document. It was neither signed nor dated. I told you this was an ordinary dispute, did I not? Anyway, the architect's certificate was underpaid by £8600, said the builder, so he sued Gullis for his cash. Trotting happily in the other direction came Gullis, with a whopping counterclaim for £127 000. It was, he said, for defective work, incomplete work and delay in completion. It had been prepared from schedules compiled by the expert surveyor, Isaac.

The same schedules were now used to mount an attack on the architect; he was "brought in" by Gullis. So with his expert Isaac at his side, Gullis could defend himself from the builder, but if he were found liable he would presumably blame the architect for some reason or other.

In the lead-up to the trial, the court gave instructions about expert evidence. The experts for each party were to meet to identify the areas on which they agreed/disagreed. Then a memo would record their deliberations for the court. After that, each expert would produce a formal report containing his opinion.

Eventually, the meeting took place. But, despite numerous reminders, Isaac didn't respond properly to the drawing up of the memo for the court. An application was then made to the judge, who ordered the expert to oblige by 4pm on 12 April.

If he did not, he would be barred from giving evidence. The judge's order contained something new: it set out important requirements of the Civil Procedure Rules in relation to expert reports. These make clear that the expert is acting as a servant of the court, not of the party paying him or her.

The judge announced that, since Isaac did not appreciate what his functions as an expert witness were, he was barred

The following must be supplied under these procedures: details of the expert's qualifications; details of any literature or other material relied on in making the report; details of who carried out any test or experiment used and whether or not it was carried out under the expert's supervision; the qualifications of the person who carried out any test or experiment; a summary of the conclusions reached; a statement that the expert understands his duty to the court and has complied with that duty; and a statement setting out the substance of all material instructions. Also, where there is a range of opinion on the matters dealt with in the report, the expert must summarise it and give reasons for his opinion. The statement should summarise the facts and instructions given to the expert that are material to the opinions expressed in the report or upon which those opinions are based.

Would you believe, Mr Isaac didn't comply? The fellow is properly qualified and has 15 years' experience. He just didn't see the force or importance of these rules. So, the judge announced that, since Isaac did not appreciate what his functions were, he was barred. The result was that no case could go ahead against the architect. You can also see how difficult life became for Gullis on his counter-claim against the builder.

Gullis took the judge's decision to appeal. Edwin Stevens vs RJ Gullis & David Pile, in July, went to three judges, including Lord Woolf. Here was a chance for this most senior judge to have a say on his own reforms. He examined what the county court judge had done, and said that this expert had no conception of the requirements of the rules and was satisfied that the county court had no alternative but to take the action it did.

By the way, Gullis wisely consulted another expert and the counter-claim has come down from £127 000 to £10 000. So, can the claim come back in against the architect? And could Isaac come back as a witness of fact? Lord Woolf said no to both.