We are nothing if not topical here at AJ Legal, writes Kim Franklin. No sooner is the ink dry on a learned (and witty) piece about the status of experts' agreements ('Rabbit Stew', AJ 25.01.07) than the Court of Appeal reconsiders the topic, which it found to be 'arguably replete with points of principle'.
In Aird v Prime Meridian (Judgment 21.12.06) householders sued their architects for various breaches particularised in over 45 pages of legal claim. The casemanagement judge required the parties to set out the allegations and defences in a detailed schedule, and ordered their expert architects to meet in order to prepare a statement of issues upon which they were and were not agreed. This is fairly standard fare for cases involving numerous detailed allegations.
What made this case different was that the court also ordered a break in proceedings for a mediation to take place.
The experts' statement was produced and used in the mediation, which was, as it turned out, unsuccessful. As the case continued the defendants wished to hold the claimants to their expert's agreement.
The claimants maintained that the agreement was 'without prejudice' because it had been prepared for the mediation, and the Technology and Construction Court judge agreed.
The Court of Appeal took a different view. The rules for experts' agreements were the result of Lord Woolf's radical proposals made in 1996 to reform expert evidence. At the time experts were enjoying an undesirable reputation for being too wordy and expensive, and sometimes arguing the case as hired guns rather than giving an independent opinion. The present rules strike a balance between enabling the parties' experts to discuss matters freely and providing the court with a useful end product.
Furthermore, while the court can provide an opportunity for a mediation, it cannot order it. You can no more force a party to settle a dispute than you can force the proverbial equine to imbibe at the water's edge. If they do decide to mediate, however, what transpires between them is 'without prejudice'. That is, after all, the whole point of mediation. You can beat (or bare) your chest, cry, demand an apology and generally go about things in a way that is not possible in litigation. If it works, hurrah; if not, it's back to court you go.
The Prime Meridian case was confused by the terms of the case management orders, which were overlaid by various interpretations from the lawyers, barristers and even the judge as to what they meant. In the end the appeal court held that the experts were ordered by the court to meet, which they did, and formulated an agreement. The 'without prejudice' tag, used for early drafts, was removed, correctly, for the final version. The fact that it was used for the mediation did not change the status of the agreement, any more than producing other documents in a mediation would magically make them privileged. The experts had made their agreement and they, and the parties, were stuck with it.
Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers in London. Visit www.crownofficechambers. com