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RABBIT STEW

LEGAL

The popular image of forensic success, fuelled by colourful but wildly inaccurate television dramas, is that halfway through a long and expensive trial, counsel for one or other of the parties pulls a rabbit out of a hat, writes Kim Franklin.

The parties gasp with amazement, the judge throws down their pencil in disbelief, the witness breaks down in tears and the defendant is exonerated (or convicted) on the spot.

Of course real life is not like that - particularly not life in the construction courts, where little of what transpires would be of any interest to the televisionviewing public. Irrespective of the entertainment factor, the forensic rabbit is seldom encountered in modern-day civil trials. This is because case-management procedures require the parties to adopt a 'cards on the table' approach.

The thinking behind this is that if the opposing party had known of the rabbit's existence earlier, they may have abandoned their 'see you in court' attitude in favour of a more conciliatory 'how much do you want?' approach.

Thus the parties are required to show each other their documents, to reveal their witnesses' evidence and swap experts' reports. In technically complex cases, in order to ensure that only those matters which are in dispute actually reach trial, the parties' experts are required to discuss their respective opinions and provide a statement of what they do and do not agree.

These joint statements can give rise to problems.

The law reports are littered with cases where experts agreed to matters outside their expertise, agreed away half the claim contrary to their clients' understanding, or subsequently changed their mind. Are clients stuck with the agreement, or is it 'without prejudice' and not to be referred to?

Aird v Prime Meridian (Judgment 19.09.06) concerned an agreement between expert architects, which was prepared in anticipation of a mediation occurring. The mediation was unsuccessful and the claimants wanted to make changes to their case before proceeding with the trial. The defendants objected on the grounds that the new case conicted with the experts' agreement. The court identified two of the competing policies at work here. On the one hand, the experts' agreement was vital for effective case management and ought not to be kept secret.

On the other hand, in order to encourage settlement of disputes, documents generated for mediation are privileged and ought to be protected from disclosure.

Rather than decide between the conicting policies, the judge assessed which was fairer to the parties. He concluded that, ordinarily, the experts' agreement did not have 'without prejudice' protection.

But this was not an ordinary case. The experts had been required to prepare their statement, particularly for the purposes of the mediation, and it was therefore protected.

Had the claimant's expert known that the statement would be used later in litigation, he would not have signed it.

Experts beware. If you want to keep your cards up your sleeve, be sure of the status of any joint statement before agreeing to it.

Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers in London. Visit www.crownofficechambers. com

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