Peter Annison v Paul Nolan

[2012] EWCA Civ54

SJE acting beyond Instructions

The Facts

The Appellant appealed against a damages assessment made in a personal injury claim against the Respondent.

In respect of serious injuries sustained by the Appellant arising from a road traffic accident the Claimant had admitted liability. That left the matter of damages to be determined.

At the assessment of damages hearing, the Claimant's Special Damages schedule had two heads of future loss namely (a) do-it-yourself and gardening costs calculated at somewhat over £24,000, and (b) utility, maintenance and repair costs calculated at somewhat over £55,000.

A single joint expert was instructed as an architect to report on certain adaptations to a residence. However, the expert reported on differences between the parties other than in relation to adaptations and the expert report considered wide ranging matters which included maintenance and repair costs, that were outwith the expert's specific terms of reference under his engagement.

The judge ordered £750 for future utility costs but made no mention of maintenance and repairs. An order of somewhat over £5,000 was made as to DIY and gardening costs.

The Issues

In this case the Court of Appeal had to consider the question of a single joint expert acting outside the scope of his engagement and his or her understanding of the role of a single joint expert. It also had to consider the factors to be taken into account by a trial judge when faced with unsatisfactory expert evidence.

The Decision

A serious procedural irregularity had occurred at the trial which the Court of Appeal considered made the trial judge's decision unjust in respect of the home maintenance and repair costs. The expert he had been asked to deal with when appointed and instructed. The Court took the view that the expert had misunderstood both the scope of his engagement and his position as a single joint expert.

The trial judge had made no ruling on the admissibility or relevance of the expert report and made no reference to it in her judgment. Further to that, the trial judge had failed to deal with the report adequately - she neither excluded it as being inadmissible or irrelevant nor did she allow it to be admitted into evidence and thence to consider its content and give reasons for not making an order for the amounts put forward in the report. Accordingly the evidential position was so unsatisfactory and unclear that the Court of Appeal decided to remit the claim for maintenance and repairs to be heard and decided at a re-trial.

Comment

Here the Court of Appeal found that the single joint expert had stepped outside his remit and was dealing with things that he was not engaged to deal with. The trial judge was then faced with an evidential "mess" but unfortunately failed to deal with it and seemingly chose simply to ignore it in her determination of the case, which was also not appropriate. Plainly this case shows the importance of an single joint expert (and indeed this applies to any expert) understanding the nature and extent of his or her instructions and the terms of his or her engagement and then ensuring that the expert report does not extend beyond the scope of what the expert has been instructed to address. If the expert considers that his instructions are unduly constrained he could seek an amendment to those instructions or an explanation of the constraint (and ultimately the expert could include a caveat in the report dealing with the extent of his instructions and its potential consequences).

TEDR Volume & Issue

TEDR Volume: 
17
TEDR Issue: 
2