A Claimant was refused permission to rely upon a second expert report in circumstances where the report of an original expert had been served but that expert had withdrawn from the case. The Claimant failed to notify the Defendants or the Court of that expert’s withdrawal for over six months. The Claimant was under a duty to apply for directions promptly after the problem arose; allowing him to rely upon the second expert would cause serious prejudice to the other parties.
Proceedings were issued in November 2010 against Barclays Bank, the mortgagee, for having sold a mortgaged property at an undervalue. The Bank brought a Part 20 claim against Lamberts Surveyors Limited on the basis that the Bank had relied upon advice given by them.
Both the Claimant and the Defendant Bank had served expert evidence in accordance with the Court’s directions. However, on 3 May 2013 the Claimant’s original expert informed the Claimant that he must withdraw from the case as he was due to retire and would no longer possess the requisite professional indemnity insurance cover. The Claimant did not inform the other parties of this development until late November 2013, over six months later (there had been discussions of mediating the dispute in the intervening period although that never came to fruition).
In January 2014 the Claimant made an application for permission to rely upon the report of a second expert. The application was heard by Deputy Master Arkush on 12 February 2014 and permission was granted for the Claimant to rely on the second report.
The Defendants appealed the Deputy Master’s decision and the appeal came before Mr R Hollington QC, sitting as a Deputy High Court Judge (“the Judge”), on 25 February 2014.
The Judge allowed the appeal and refused to grant permission for the Claimant to rely on the second expert report.
The Judge highlighted that the Claimant was under a duty to apply for permission to rely on the second report as soon as it became apparent that it was necessary or desirable to do so (PD23A para 2.7). That was in May 2013, not January 2014.
It is also pertinent to note the guidance set out in the Chancery Guide which reads:
“8.12 Where a party decides not to call a witness whose witness statement has been served to give oral evidence at trial, prompt notice of this decision should be given to all other parties.”
The Judge also made it clear that serious prejudice would be caused to the Defendants if the Claimant was granted permission to rely on a second expert report. Specifically:
- The Defendants’ experts had already responded to the Claimant’s original expert report;
- The Claimant had now seen the Defendants’ expert reports which provided an unfair advantage in obtaining a second expert report;
- The Defendants would have to respond to the Claimant’s second expert report (should the same be allowed); and
- The time required to so reply would result in the trial window being vacated (which in turn would be prejudicial to other court users).
Given the prejudice caused to the Defendants and having taken the non compliance (with PD23A para 2.7 and the Chancery Guide) into account the Judge concluded that the Claimant should not have been granted permission to rely on the second expert report and allowed the appeal.
The Judge formed the view that the Claimant had not disclosed the withdrawal of the original expert in order to strengthen his bargaining position in the proposed mediation. The proposed mediation never came to fruition and the Claimant was forced, after great delay, to apply for permission to rely on the second report. The Judge stated, “He [the Claimant] has only himself to blame for his predicament- he gambled that he could settle the case on a basis which he knew to be false, he has lost the gamble and he must make do with the only conceivable theoretical justification for the non-disclosure….namely that he was always going to fall back on the Dall [the original expert] report but without Mr Dall.”
The Judge did give permission for the Claimant to rely on the original expert report, albeit without that expert’s attendance at trial with the trial judge giving it as much weight as appropriate.
In the context of ongoing litigation, concealing information which might have an impact on the timetable and/ or cause prejudice to the other side is not acceptable. Transparency and efficiency are demanded from parties and their legal representatives; a failure in either of those regards is likely to be met with judicial disdain.