Changing [evidential] horses: a mere walk in a park or a steeple chase?

The recent High Court decision in James Hinson v Hare Realizations Ltd [2020 EWHC 2386 (QB)] provides further guidance to practitioners as to the relevant principles when considering abandoning a Single Joint Expert in favour of an independent expert, or when opposing an application made by the other party, to depart from an expert instructed on a single joint basis. In this blog we review the case and set out the principles to be applied in this potentially decisive tactical area.

The Facts

In this fast track noise induced hearing loss action limited to £5,000, the parties agreed to obtain an expert engineering report on a single joint basis. The report did not support noise levels which would have been sufficient for the claim to establish breach of duty. The claimant put Part 35 Questions to the single joint expert.  

Two months before trial in February 2020 (which had been re-listed on two occasions for reasons unconnected with the claimant’s application) the claimant’s solicitor instructed another expert, and it came to light from their discussions with him that there may be deficiencies in the single joint report in relation to the applicability of the PERA Survey of Noise in Engineering Workshops (1996), which sets out typical machine shops noise levels. The claimant was permitted to put further questions to the single joint expert.

The claimant’s solicitors obtained a report from their second expert at the ‘11^th hour’ and without the knowledge of the defendant, being finalised only three days before trial. An application was immediately made by the claimant’s solicitor for an Order to: vacate the trial to be relisted for a two day trial; for the case to be re-allocated to the multi-track; and for the claimant to have permission to rely on Mr Watson’s report (with the defendant to continue with Ms Martin as their expert). 

Miss Recorder McNeill QC refused the claimant’s application and the trial therefore proceeded. At first instance, the claim was dismissed on breach of duty.

The Appeal

The claimant appealed the decision, which was heard by Mr Justice Martin Spencer. The claimant submitted that the claim could not be dealt with justly unless he had permission to rely on his independent evidence and he argued that the approach in Bulic v Harwoods [2012] EWHC 3657 should be applied.

In Bulic, Eady J referred to the Court of Appeal decision in the earlier case of Daniels v Walker [2000] 1 WLR 1382, which said:

“…In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue. It is to be hoped that in the majority of cases it will not only be the first step but the last step. If, having obtained a joint expert’s report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert’s report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.”

Mr Justice Spencer considered that the words “subject to the discretion of the court” in the Daniels judgment to be important, and he agreed that the correct approach to such applications is that set out in Bulic. However, he agreed with the observation of Eady J that, “the Court of Appeal did not intend to apply any straitjackets to the Court.” Although in Bulic, Eady J allowed the appeal, the principles with regard to the appropriate approach of the court to such applications are the same and are the right ones.

In his judgment, he found that the Recorder at first instance was faced with the clear task of balancing the interests of the parties, taking into account not only the overriding objective, but also the interests of justice generally in seeing that cases are decided expeditiously, at proportionate cost, and without undue inconvenience to other parties. He found that Recorder McNeill QC’s approach to this was “impeccable”, that her decision was well within the ambit of her discretion and that it could not be said that she had erred in law or applied the wrong test, or otherwise so misdirected herself that her decision is capable of challenge. The appeal was therefore dismissed.

Insight

It is perhaps tempting to conclude that the door is swinging shut in low value claims where there is a desire for one party to depart from a single joint expert.  In our view this is not the case.  Close analysis of the circumstances (as ever) remains crucial. It appears that the fact that this case would have been determined at trial months before the claimant’s own expert was instructed and the fact that the second expert’s evidence only came to light at the ‘11^th hour’ before trial tipped the balance of grievance test in favour of the defendant.

We should have in mind the following fact sensitive questions when considering any application to abandon a single joint expert in favour of an independent expert: 

1. Proportionality: would it be proportionate, taking into account all of the circumstances, for the single joint expert report to be abandoned in favour of independent experts? [In this case the low value of the claim was relevant in the exercise of discretion at first instance, although it was not conclusive.]
2. Importance of the evidence: is the evidence of the single joint expert central to the issues in the case and is it “technical” in nature?
3. Existence of good reason: does the applicant have good reason for no longer wanting to rely on the report of the single joint expert e.g. is the loss of confidence in the single joint expert reasonable?
4. Timing: very importantly, at what stage are the proceedings? Will the introduction of further expert reports impact on the viability of a fixed date for trial? It would seem that the closer the matter is towards trial, the less likely it is that further expert evidence will be permitted, if it will result in a waste of court time, court resources and if it is an inconvenience to other parties.
5. Cost: what is the likely increase in costs if further expert evidence were to be introduced?

At the end of the day the decision will come down to judicial discretion and its case management powers to control evidence. The discretion is wide and determinative. 

Single joint expert (SJE) evidence can have very useful tactical and cost implications: 

1. At a cost level it is a way of stripping out a large segment of duplicate and often wasted costs. (Remember the need to tell the other side that you are relying on a given budget sum where single joint evidence is initially adopted).
2. A SJE serves to restrict the ability of the claimant to develop a case out of plain sight
3. There is greater flexibility around questions to experts
4. Single joint reports can be useful in the context of ongoing rehabilitation
5. It may be appropriate to bite the bullet on a given outcome, for example housing needs, in exchange for retaining far greater control over the shape of the resultant report on associated costs.
6. Experts evidence that secures base line testing with limited room for debate on the resultant test results may be suitable candidates, especially where the interpretation is for another field of (separate) expertise

However in every case it is critical that we look down the barrel and question what if the SJE proves damaging to our case. The timing of the application is absolutely critical. Delay here till close to trial is more likely than not to be fatal. If a shift away from a SJE is thought likely then this must be addressed promptly. Equally a Claimant who fails to apply promptly is at risk.  

For more information, please contact Partner, Rebecca Williams.