Expert reliance: Wheeldon Brothers Waste Ltd v Millennium Insurance Co Ltd

Wheeldon Brothers Waste Ltd v Millennium Insurance Co Ltd [2017] EWHC 218 TCC

This case involved a fire at the Claimant’s waste processing plant. The Claimant sought to recover approximately £1.5 million in damages from the Defendant insurers. During the first CMC, the Claimant sought to prohibit the Defendant insurer from relying on their chosen fire expert, Mr Steven Braund, a forensic expert employed by Hawkins.

Mr Braund had visited the site the day after the fire, carried out usual post-fire investigations, including interviewing witnesses, taking photographs and inspecting the area of the fire. Following his investigations, he reported back to the Defendant insurers that the cause of the fire was likely frictional heating, hot metal fragments or hot sparks which ignited combustible material under the conveyor.  In reliance on Mr Braund’s report the Defendant insurer declined liability under the policy, on the grounds that the presence of combustible material and/or the state of the conveyor was contrary to a number of terms of the insurance policy.

The Claimant then engaged Mr Braund to assist with ‘its proposed recovery’ against third parties. The loss adjusters gave permission for Mr Braund to be instructed as a ‘technical advisor only’ to assist with the Claimant’s  proposed recovery against third parties. His report, as previously, concluded that the fire was likely caused by ignition of combustible material through frictional heating, hot metal fragments or sparks resulting from failure of the replacement bearing, but he added that “there is insufficient evidence to say which of these caused ignition”.

Proceedings commenced and a copy of Mr Braund’s report was served with the Claim Letter.

In their application to prohibit the Defendant insurers from relying on Mr Braund, the Claimant’s relied the decision of Prince Jeffri Bolkiah v KPMG [1999] 2 AC 222, in which the The House of Lords concluded that as the defendants were in possession of confidential information originating from the claimant, the burden was on them to show that there was no risk that the information would come into the possession of those acting for the other party.

The Defendant insurer relied on Meat Corporation of Namibia Limited v Dawn Meats (UK) Limited [2011] EWHC 474 (Ch), which stated that the strict test and strict requirements of Prince Jeffri should not be imposed; there was no evidence of any risk that confidential information would be disclosed by the expert.

Coulson J gave judgment that the Defendant could rely on Mr Braund because:

(1) Mr Braund was in the best possible position to assist the court on many of the background issues surrounding the fire, as he attended immediately after the fire and had carried out all the usual and extensive investigations.

(2) There was no overlap or conflict between what Mr Braund was instructed to do by the Claimant and what he was instructed to do by the Defendant.

(3) This matter was about instructing an expert pursuant to CPR part 35 which requires them to have an overriding duty to the court; that duty trumps everything else. The Judge concluded that this overriding duty also modified the strict application of the rule in Prince Jeffri.

(4) Regarding confidential information: the judge concluded that there was no evidence that confidential information was passed to Mr Braund in the first place, and certainly no risk that it would be passed on to the Defendant. There was no evidence that, even at its highest, ‘privileged and confidential matters’ had been raised by the Claimant with Mr Braund, much less any information which had, or could have had, an impact on his opinion as to the cause of the fire.

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