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!

Necessity for Expert Evidence, late application & £1 million fees

Is expert evidence required to assist

[2010] EWCA Civ 1444 TEDR Volume 16 Issue 1

The Facts

This was a commercial case and involved the interpretation of a contract. The question which concerns us is whether or not a Court can take account of expert evidence on the issue of “market price” for the purposes of implying a term into a contract whether that contract is wholly in writing or partly oral and partly in writing.

The Issues

Would the Court admit expert evidence?

The Decision

Lord Justice Atkins re-affirmed the earlier law that a Court must consider all the background knowledge which would be reasonably available to the parties when deciding whether or not a wholly written contract was to be interpreted so as to contain an implied term. He concluded that the same was true of a contract which was partly oral and partly in writing. Even if the contract is wholly oral his Lordship’s view was that the position is the same. Accordingly, it was held that a Court was entitled to receive the evidence of an expert as to what the “market price” was if that was something which was relevant to the background knowledge that would have been available to the parties. Further, if there was a dispute between the parties as to what market price was, His Lordship was of the view that expert evidence would be even more necessary. His Lordship referred to the landmark case of Prenn v Simmonds [1971] 1 WLR 1381 at 1383H to 1385H per Lord Wilberforce: written contracts are not to be interpreted divorced from the matrix of facts in which they were set and interpreted purely on internal linguistic considerations. Therefore, expert evidence of the factual background known to the parties at the time would be admissible.

Conclusion

Accordingly, there is nothing inherently wrong in an expert being instructed to give an opinion of practices within a particular industry at the time a contract was entered into for the benefit of allowing the Court to understand the backdrop to the commercial arrangement. The position is the same whether the contract is written oral or a mixture.

Relevance of Expert Evidence to Limitation

[2006] EWHC 1478 (QB) TEDR Volume 11 Issue 1

The Facts

This was a claim between a GNER and its insurance broker (JLT) for a failure by the latter to obtain cover of a particular type. The claim in negligence was admitted by the insurance broker but it asserted that either the claim to damages was time barred under the Limitation Act 1980 or was extinguished by a previous payment in related legal proceedings. The damages being claimed amounted to about £3 million for uninsured losses arising from the derailment of a train due to an engineering/manufacturing defect to the wheel of one of the coaches.

The Issues

The issue of relevant to experts was when the time bar argument should be determine – i.e. pre-trial or at trial.

The Decision

The limitation issue in this case was to be disposed of at trial and not before. This was because “expert evidence as to the relevant practice of insurance brokers was likely to inform and assist the court as to the extent and nature of any continuing duties of JLT in relation ….to the need to obtain an agreed policy wording and provide it to the claimant.” The Court recognised that expert evidence as to the general practice of insurance brokers would be taken into account in appropriate cases. The issue in this case was whether the Defendant owed a continuing duty to the Claimant from the time of renewal of the contract of insurance in March 1998 up to the time of the derailment in June 1998 – plainly expert evidence might assist in relation to that issue by showing the general practice of insurance brokers at the relevant time.

Comment

An unsurprising decision given the desirability of expert evidence on the issue. However it should be noted that in many cases limitation issues focus on matters of law without significant dispute as to the surrounding facts or the necessity for expert evidence – and hence can be dealt with pre-trial. That can often save substantial costs of preparation of the case if the matter can be disposed of at an early stage – and that will generally only apply where there is not a dispute of factual evidence on matters pertinent to the issue of limitation or where expert evidence would be required or helpful to resolve that issue. However where, as in the current case, expert evidence was desirable, it would sometimes be appropriate to await trial for the limitation issue to be resolved.