Expert’s Report once disclosed can be used by others

[2008] EWHC 123 (TCC) TEDR Volume 13 Issue 2

The Facts

The case involved a fire. There were multiple parties. The issue was, essentially, who and what caused the fire and, whether that party bore any liability.

Each Defendant and the Claimants had permission to instruct a Fire Expert. Those reports had been exchanged in accordance with the CPR. The Experts had met (on several occasions) and joint statements were available. All bar one expert agreed that the seat of the fire was on the supply side of the electricity meter. Only the expert for EDF disagreed, contending the seat of the fire was on the consumer side. If the latter was correct, it was agreed that EDF could bear no liability. If it was the former, the question was whether EDF were liable for the fire.

On the first day of the trial, it was agreed that the Second and Third Defendants should be allowed out of the proceedings on terms. Some of the Claimants’ claims were also disposed of by agreement but some remained.

The remaining Claimants applied under CPR 35.11 for an Order confirming they could rely on the reports of the two Fire Experts of the Second and Third Defendants.

The Issues

Is a party who is still within the litigation entitled to rely upon the expert’s report of a former party to the proceedings?

The Decision

The wording of CPR 35.11 is unequivocal and unqualified. It applies if any party has disclosed an expert’s report in accordance with CPR 35.4 and therefore any other party may rely on it as expert evidence. There is no qualification that it only applies to a report of a party who remains a party to the litigation.

Whilst the use of experts, and particularly the reliance on more than one expert, is to be discouraged, the Court had originally permitted each party to have their own expert and considered it reasonable to do so.

Further, even if the Court had a discretion, all of the Fire Experts had spent a considerable amount of time talking and producing four joint statements which were before the Court. Therefore, it was likely that to understand them, it would be necessary to understand their original reports.

It was not thought disproportionate for the reports to be used in evidence. Given that the claims against the Second and Third Defendant did not resolve until after the trial was listed to start, EDF must have prepared for trial on the basis that they would have been used. Further, EDF could call the Experts and would be permitted to cross-examine them should they so wish. Costs would not be materially increased. Consideration must already have been given to the reports and, even if they were to be called, cross-examination would probably be fairly limited. In any event, the trial was likely to be shorter given that some of the claims had been compromised.

Comment

Once an Expert’s report, for which a party has permission, is disclosed within proceedings it can be used by any other party regardless of whether the original party remains within the litigation or not.

Accordingly, an expert witness is not necessarily released from litigation just because the claim/counterclaim/defence of his/her party has been settled.