In court proceedings the parties are only allowed to produce and rely upon expert evidence with the permission of the court. This enables the court to ensure that:
- All expert evidence is aimed at resolving an issue in dispute; and
- That the costs of expert evidence will be proportionate to that issue in dispute
C&S
Associates UK Limited v Enterprise Insurance Company Plc concerned the
termination of a commercial contract between an insurer and a claims
handler. A number of preliminary issues were identified and these were
determined at the end of 2015. At the start of 2016 the Commercial Court
turned its mind to the costs of the preliminary issue hearing. There were
a number of competing interests that needed to be considered, including the
existence of offers made to settle the preliminary issues. However one
specific issue of importance to all readers of this blog (in light of the
importance of expert evidence in many construction disputes) is the manner by
which the court penalised the Claimants for their introduction of expert
evidence into the trial bundles.
The court
gave the parties permission to adduce expert evidence. Reports were
produced. The Claimant’s report, however, included a lengthy section
which analysed and expressed views about the merits of certain allegations made
by the Defendant. That was not a preliminary issue to be determined and
no permission had been obtained to produce expert evidence on that. The
Claimant was nevertheless insistent that the whole report should be included
within the trial bundles. The Claimant also required some 29 additional
trial bundles to be produced which contained documents that underpinned that
analysis. The question of expert evidence (and in particular the extent
to which it was permitted by the court) was addressed in favour of the
Defendant as part of the preliminary issue hearing. The Claimant was
unable to rely upon those parts of the report which expressed views on the
merits of the Defendant’s allegations.
In deciding
costs the Commercial Court order the Claimant to meet the costs of its own
expert evidence and 80% of the costs of preparing bundles in any event (so that
even if the Claimant were ultimately successful at trial, it could not seek an
order that the Defendant meet or contribute toward these costs). Whether
these costs were significant relative to the value of the claim itself is not
clear from the judgment, but the Court’s decision is a clear warning. If
there are issues that require expert evidence then the appropriate first step
is to reach agreement with the other parties over the use of expert
evidence. If agreement can be reached then the parties should look to
present an agreed set of directions to adduce that evidence for approval.
If the parties cannot agree on the use of expert evidence then the court should
be invited to determine the question at an early stage. What C&S
illustrates is that a party ignoring the court’s powers to regulate expert
evidence does so at their own risk.