Scotchbrook v Southern Response Earthquake Services Limited

[2018] NZHC 757

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-000791

-  [2018] NZHC 757

BETWEEN

TRUDY SCOTCHBROOK and ROGER JOHN SCOTCHBROOK
Plaintiffs

AND

SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED

Defendant

Hearing:

28 March 2018 (with further memorandum received 16 April 2018)

Appearances:

J Moss and G Davis for Plaintiffs

E J Walton and M McSparron for Defendant

Judgment:

20 April 2018

RULING OF ASSOCIATE JUDGE OSBORNE

on expert reporting

Introduction

[1]                  Issues have arisen between the parties as to the expert reporting process. I heard submissions from counsel by telephone conference. Counsel in particular disagree on whether there should be a single joint report from the experts or a series of sequential requests by experts of different disciplines.

[2]Matters have since progressed to the following extent:

[a]representatives of the defendant, its project manager, its builder, its designer and its solicitors visited the plaintiffs’ property on 16 April 2018; and

SCOTCHBROOK v SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED [2018] NZHC 757 [20

April 2018]

[b]the joint experts’ site inspection was carried out on 16 April 2018, attended by all of the parties’ who are to participate in the joint conferral stage.

[3]                  What this Minute therefore focuses on is the manner in which the expert conferral and reporting is to be completed.

The background

[4]                  At the start of this proceeding, the parties agreed to their experts meeting on site for conferral and for a joint report to then be produced by the parties’ engineers. The site visit occurred on 16 March 2017 attended by the plaintiffs’ structural engineer, Mr Weber; Mr Cowie, a cadastral surveyor; the defendant’s structural engineer, Mr Finn; a cadastral surveyor, Mr Mawhinney; and a geotechnical engineer, Mr Charter, with assistant, Ms Morgan; and a building surveyor, Mr Calvert. At that time it was agreed that Mr Weber would distribute a first draft of a joint experts’ report.

[5]                  The plaintiffs at that point engaged a geotechnical engineer and a weathertight specialist. On 28 April 2017, the parties obtained consent directions amending the timetable to require the plaintiffs to serve further expert reports, if any, and to require the parties’ experts to file a joint report (or separate reports if agreement could not be reached through the conferral process).

[6]                  Subsequently, the defendant through its solicitors invited the plaintiffs to reconsider the approach to joint reporting and, in particular, suggested that each discipline of experts present a separate (joint) report. In the meantime, the defendant pushed for Mr Weber to produce his first draft of a joint report.

[7]                  Ms Walton (for the defendant) advises the Court that in September 2017 the solicitor then acting for the plaintiffs (since replaced) agreed to a proposal which specifically provided that:

[a]the structural engineers would confer and then circulate some questions for other disciplines to answer as required;

[b]the other disciplines would then confer with each other and answer any questions asked by the structural engineers to inform the structural engineers’ report.

Mr Moss, now counsel for the plaintiffs, records that the plaintiffs’ former solicitors did not have instructions from the plaintiffs to agree to a sequential joint reporting process. This became part of the reason for the plaintiffs subsequently changing solicitors.

[8]The defendant’s solicitors then once again awaited Mr Weber’s draft joint

report.

[9]A month later the plaintiffs changed their solicitors.

[10]              Through October 2017, counsel for the defendant pursued progress on sequential joint reporting but in November 2017, counsel for the plaintiffs indicated that the plaintiffs required the retention of a single joint reporting process.

[11]The plaintiffs’ structural engineer, Mr Weber, provided his draft joint report to

Mr Finn on 17 November 2017.

Defendant’s position

[12]              Ms Walton submits that with the number of experts now involved, separate experts’ reports will remove the logistical drafting and delay issues presented by eight experts contributing to one report. She suggests that a sequential approach to reporting is likely to reduce the time to complete the joint referral and reporting process. The first step in her proposal was that all experts attend a further joint site visit as has now (on 16 April occurred).

[13]                Ms Walton submits that from this point the experts should appropriately be directed as follows:

[a]The parties’ structural engineers to confer and provide a report with

questions to other experts by 30 April 2018;

[b]The parties’ cadastral surveyors to confer and to provide a report with

questions to other experts by 21 May 2018;

[c]The parties’ building surveyors to confer and provide a report with

questions to the other experts by 4 June 2018;

[d]The parties’ geotechnical experts to confer and to provide a report to

other experts by 11 June 2018;

[e]All finalised joint experts’ reports to be filed by 22 June 2018.

Plaintiffs’ position

[14]              For the plaintiffs, Mr Moss submits that the sequential reporting is inappropriate. He submits that there is a substantial overlap of technical disciplines with many aspects of the damage analysis and reinstatement recommendations, which makes it appropriate for all experts to contribute (to an overall discussion). Mr Moss notes that issues such as deformation (including as to how and why it occurred) require input from experts across disciplines and cannot appropriately be analysed or discussed with each discipline having separate discussions. Mr Moss draws an analogy with building projects where through the design and construction process, experts work together.

[15]              Mr Moss sees additional work and cost in the sequential and separate reporting proposed by the defendant. He also sees overlap arising with a “confused bundle of joint reports” that will not assist to narrow the issues.

[16]              Against that background, Mr Moss opposed any direction for sequential (and separate) joint reports. He proposed that the onsite inspection of experts on 16 April 2018 should include time for conferral on the damage and appropriate reinstatement strategy.

Discussion

[17]              Decisions on case management must be made, as the High Court Rules themselves must be applied, to secure the just, speedy, and inexpensive determination of proceedings.1 At the same time, the Court recognises that there will be proceedings where some additional or different steps from the usual gathering or completion of evidence may ultimately reduce total litigation costs – expedient approaches may prove to be only expensive shortcuts.

[18]              Here, I am not satisfied that four sequential sets of experts’ reports (with costing reports yet to follow) is the more appropriate procedure. With all experts on site together on 16 April 2018, they could have taken the opportunity to confer on all relevant matters as suggested by Mr Moss. It was sensible that they did so. I do not know whether they did so. To the extent that they may have done so, that should have been helpful. To the extent that they did not do so, they should all be able as responsible professionals to convene by telephone conference or otherwise, whether on one occasion or more, to put on the table the issues which may have arisen from the joint inspection and to identify the best order in which to contribute to a joint report and the best format which will assist the parties and the Court as a joint report. It should be reasonably possible for the experts involved to work out the most efficient layering of the report. They should be readily able to identify within the layers of the report the particular experts who are responsible for that part of the report.

[19]              Had a sequential conferral and reporting process been suggested for the defendant at the outset (in November 2016) the Court might have regarded such a proposal more favourably. But the defendant at that time (with the plaintiffs) sought a single joint reporting process following an on-site inspection by the experts. Given the range of experts who attended the joint site meeting for the defendant, the defendant must be taken to have had a reasonable understanding of the range of issues involved and counsel must have been satisfied that the single joint report proposal was appropriate.

1      Rule 1.2 High Court Rules.

[20]              I expect also that counsel on both sides, in agreeing to a single report at the time, took into account the history of delays frequently encountered in the Earthquake List in getting the experts to complete their joint report by a given date, let alone having four sets of reports completed on sequential dates.

[21]              I am satisfied that it is appropriate that the experts be required to cooperate to achieve a single joint report.

[22]              The joint report is to meet the requirements stated in the Protocols for Expert Conferral under the High Court Earthquake List and the report is to follow the approved form but with allowance for the layering of evidence from different disciplines.

[23]              In the timetable I impose, I will also make directions for the completion of the costing reporting so that the Court may, at the next case management conference, make trial directions.

Timetable

[24]I direct that by:

[a]11 June 2018 – the parties’ experts are to file their joint report, having previously conferred and exchanged draft reports in sufficient time to ensure that the 11 June 2018 deadline is met;

[b]9 July 2018 – the parties are to serve upon one another updated costing reports.

Final case management conference

[25]              I adjourn the proceeding to a final case management conference on the first available date after 24 June 2018 to be allocated by the Judicial Support Adviser.

[26]              Counsel are to file five working days before that conference preferably a joint memorandum dealing with the readiness of this proceeding for hearing. The agenda for the conference (r 7.4(2)) will be all Schedule 5 matters including:

·any steps necessary for the disposal of interlocutory applications;

·the suitability of the case for Judicial Settlement Conference or alternative dispute resolution;

·the estimated duration of the hearing;

·timetable directions for trial;

·the names and number of witnesses (and which are factual and expert);

·any particular directions required in relation to experts; and

·confirmation that a back-up fixture will be accepted (or if not, why not), subject to prior notification.

Associate Judge Osborne

Solicitors:

Wynn Williams, Christchurch Jai Moss, Barrister, Christchurch