Written by Michael Trevelyan
Michael was recently instructed for the Claimant on a noise induced hearing loss claim. The Claimant wished to rely upon their own expert evidence and abandon the single joint expert who had produced a flawed and unfavourable report.
At first instance the Deputy District Judge applied the Bulic principles (please see Michael’s earlier article for a discussion of the applicable law) and dismissed the application. After hearing an appeal by telephone, Her Honour Judge Coe QC allowed the appeal and permitted the Claimant to rely upon her own expert evidence.
The decision is interesting firstly because of the comparatively low value of the claim against the costs of involving a second expert. The claim was limited to £5,000 and allocated to the fast track. The costs of relying upon a new expert, quite aside from the costs of the appeal itself, will likely be many multiples of that sum. Secondly, the decision being appealed was a case management decision and therefore could only be overturned if it was plainly wrong in the sense of being outside of the generous ambit where reasonable decision makers may disagree.
Finally, the Judge made a number of helpful observations about the interplay between Bulic, Daniels and the Overriding Objective. In the course of the appeal it was argued on behalf of the Defendant prejudice would be caused on account of the increase in costs which, due to qualified one-way costs shifting, were unlikely to be recovered in any event. The Judge had little time for that argument and stated that: “…it does not seem to me that it is proper to argue that the qualified one-way costs shifting regime can, of itself, alter the need to do justice between the parties pursuant to the overriding objective.”
The Judge was also critical of the approach taken at first instance which was to order that, although the Claimant could not instruct her own expert, the single joint expert could attend in order to be subject to “robust cross-examination” on the Claimant’s behalf. The Judge opined that such an approach, which is often mooted by Defendants opposing applications of this nature, required a consideration of how precisely such cross-examination could be embarked upon without the benefit of competing expert evidence at trial. The Judge added that to put a party in a situation where they were expected to undertake such a cross-examination was “unfortunate”.
On the issues of proportionality and value, matters which particularly trouble Courts hearing these applications, the Judge emphasised in accordance with Bulic the weight to be given to the centrality of the expert evidence and the genuine loss of confidence which prompted the application as against the limited sums in issue. The Judge stated that “[e]ven in this claim of modest value it seems that the Deputy District Judge must have afforded too much weight to this factor and had he weighed it against the potentially determinative nature of the expert evidence and the loss of confidence in the single joint expert by the claimant he should have granted the application.”
It is to be hoped that, in future, many more such applications will be decided in accordance with the Bulic principles and therefore the issue of value will be considered very much secondary to the need to do justice in an individual case where a party has, for good reason, genuinely lost confidence in a single joint expert.