1 October 2020

Obtaining Your Own Expert Evidence After Instructing a Single Joint Expert

In Hinson v Hare Realizations Ltd [2020] EWHC 2386 (QB), the High Court reaffirmed the factors relevant to an application to abandon a single joint expert report and rely on one’s own expert evidence. To read the judgment, please click here.

Background

The Claimant claimed that in the 1970s and 1980s, while working in a Machine Shop for the Defendant, Hare Realizations Ltd, he was exposed to high levels of noise resulting in noise-induced hearing loss ("NIHL").

Proceedings were issued in September 2017. The parties agreed on the joint instruction of Ms Laura Martin of Strange, Strange and Gardner to produce an expert acoustic engineering report. Ultimately, Ms Martin’s report was unfavourable to the Claimant. Nevertheless, trial was listed for 27 February 2020, having previously been adjourned on two occasions.

On 20 December 2019, in discussions with another expert, Mr Adrian Watson, in relation to another NIHL claim, the Claimant’s solicitor learned that there might be deficiencies in Ms Martin’s report relating to the PERA Survey of Noise in Engineering Workshops (1996) which set out typical noise levels in machine shops. Those deficiencies are set out at [15] of the Hinson judgment.

On 10 February 2020, the Claimant’s solicitors commissioned an expert report from Mr Watson which was received three days before the date listed for trial and which was favourable to the Claimant.

The Claimant applied for an order to vacate the trial, reallocate the case from the fast track to the multi-track and for permission to rely upon Mr Watson’s report with Ms Martin to continue as the Defendant’s expert. An application to abandon a single joint expert and rely on one’s own expert evidence is also known as a Daniels v Walker application after the Court of Appeal decision in Daniels v Walker [2000] 1 WLR 1382.

Miss Recorder McNeill QC refused the Claimant’s application to vacate the trial and to rely on Mr Watson’s evidence. The Claimant appealed.

When will a court allow a party to abandon single joint expert evidence?

Martin Spencer J dismissed the Claimant’s appeal against the decision of the Recorder. He held that the correct approach to applications by parties to abandon a single joint expert and adduce their own expert evidence was set out by Eady J in Bulic v Harwoods [2012] EWHC 3657 (QB).

Summarising [21] to [24] of Martin Spencer J’s judgment and the authorities cited therein:

  1. The fact that a party has agreed to a joint report does not prevent it from being allowed facilities to obtain a report from another expert or rely on another expert’s evidence.
  2. If a party has obtained a joint expert’s report but, "for reasons which are not fanciful", wishes to obtain further information before deciding whether to challenge the joint report in part or as a whole, then they should be permitted to obtain that evidence, subject to the wide and fact-sensitive discretion of the court.
  3. What counts as "good reason" to abandon a single joint expert is fact-sensitive; even if a reason qualifies as a "good reason" in one case, it might not count as a "good reason" in another case.
  4. The court must have regard to the overall justice to the parties which is a fact-sensitive question.

The following points are also clear from Eady J’s judgment in Bulic:

  1. Where the court is concerned with a relatively "peripheral" issue or evidence of a non-technical nature, the court will be less likely to dispense with a single joint expert.
  2. Whether a case is "substantial" is relevant to, but not determinative of, the court’s discretion to justify dispensing with a single joint expert. If a claim is of less than a certain monetary value, this does not necessarily mean that a court will decline to allow a party to engage his own expert evidence where he has lost confidence in a single joint expert, especially where the evidence is of a technical nature and is likely to be determinative on liability.
  3. One should not become too focussed on the exceptional nature of an application to dispense with a single joint expert’s evidence; regard should be had to all of the relevant factors.

The relevant factors

Returning to Hinson, Martin Spencer J held that the Recorder had acted well within the generous ambit of her discretion, weighing up all the relevant matters without unduly emphasising any particular matter. Those relevant matters included:

  1. the overriding objective;
  2. the interests of the Claimant;
  3. the centrality of the single joint expert report to the issues of the case;
  4. the technical nature of the single joint expert report;
  5. the Claimant having "good reason" for wishing no longer to rely on the joint report;
  6. the application was made at a late stage and would, if granted, result in the breaking of a fixture with potential waste of court time and inconvenience to other parties;
  7. the case had already been adjourned twice but not for reasons relating to the Claimant’s conduct;
  8. the single joint expert was chosen by the Claimant;
  9. the Claimant had raised Part 35 questions of the joint expert on two occasions; and
  10. if the application were granted, the case would be re-allocated to the multi-track resulting in a significant increase in costs.

Conclusion

Hinson v Hare Realizations Ltd helpfully sets out some of the factors relevant to the court’s wide exercise of discretion when considering Daniels v Walker applications to abandon single joint expert evidence and rely on one’s own expert evidence. Hinson demonstrates that an unfavourable single joint expert report need not necessarily sound the death knell for a successful outcome in the case.

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Jessica Woodliffe

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Ropewalk Chambers

Ropewalk Chambers has, over many decades, established a market-leading reputation for detailed and specialist expertise in the field of Industrial Disease litigation.

Whether asbestos, noise, dust, vibration, stress or any other insidious process, including those which are newly emerging, its members have consistently appeared in the leading cases, determining the limits of liability, causation and quantum at first instance and appellate level.

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