Expert’s withdrawal – and repercussions

[2013] Bus LR D45, [2013] EWHC 1039 TEDR Volume 17 Issue 2

The Facts & Issues

The Applicant applied for permission to rely on expert evidence related to delay in a construction project.

This was complex litigation and the trial date had been vacated on two previous occasions already. The applicant accepted that its application was being made late. However it argued that this was itself brought about by late disclosure of documents by the Respondent – namely some 15,000 pages of documents which had caused the Applicant to pay close attention to the delay aspect of the case.

The Respondent contended that that the application should be refused by the Court because:

i) the Applicant had known about the delay issue from early on in the proceedings but had decided to deal with it as a matter of fact and had indicated that the expert evidence was not necessary;

ii) there were a number of third-party factual witnesses who might provide relevant evidence on the issue of delay and who might be needed to assist in relation to the development of the proposed expert evidence and it was unreasonable to expect them to disrupt their other commitments and give precedence to this matter over a period of some months so as to assist;

iii) the provision of expert reports on this case could cost up to £1,000,000 for the two parties.

The Decision

The Commercial Court judge considered that whether expert evidence was required in this case could not be determined without seeing an expert report.

However, the Court was prepared to accept that the expert evidence proposed by the Applicant could arguably assist the court in dealing with the case substantively. The necessity of that expert evidence would be determined later on in the proceedings.

The unreasonableness or impracticability of time demands on third-party factual witnesses was a broad and non-specific contention and without evidence of particular difficulties for specific witnesses of fact, it would not be a basis to deny the application.

As much as £100,000,000 was at issue in the case and so the headline figure for the parties of £1,000,000 for expert evidence needed to be considered in that context and would not be a basis for denying the application. Accordingly the application was granted.

Comment

It might well be thought that the Applicants were extremely lucky in relation to this decision.

The judgement was ex tempore and so was delivered orally shortly after the application – rather than the judge taking time to consider the pros and cons in additional detail and producing a written closely worded judgement.

It seems to be the sort of case where another judge hearing the same application might easily have reached a different decision in his or her discretion – though that is not to say that this decision was wrong. It is a case which plainly should not be viewed as a benchmark for the seeking permission to adduce expert evidence!