Claim No: IL-2025-000064 - [2025] EWHC 2545 (Ch)

The claimants acknowledge that they will, of course, give appropriate disclosure, and address these matters, as required, in their witness evidence (by people with first-hand knowledge of such matters). In his turn, the defendant will clearly be well able to address these matters himself.

For all these reasons, the claimants invite the court to dismiss the defendant’s application to adduce expert evidence. It is not necessary. It is not reasonably required. It would not even be potentially useful (which is not the test in any event). To the contrary, it is more likely to be an unwelcome distraction, both in the preparation for a speedy trial, and for the trial judge at trial. It will, in reality, serve substantially to increase costs, and for no material benefit. If, notwithstanding the claimants’ submissions, the court were against them, then directions would be needed: (i) in respect of each and every issue (which would need to be carefully defined) in relation to which the court considers that expert evidence is reasonably required, (ii) for the exchange of reports (which, contrary to the defendant’s position, should plainly come after, and not before,factual witness evidence), (iii) a joint without prejudice meeting, (iv) a joint statement, and so forth. I have already referred (in the section of this judgment dealing with case management issues) to the claimants’ post-hearing submission that if (contrary to their primary position) the court were to determine that expert evidence is reasonably required, a number of consequential matters would arise for determination at a further hearing.

In her recently filed, further written submissions, Ms Goodman begins by submitting that this is an appropriate case for a single joint expert. This would be more proportionate. Whilst the matters which that evidence would address are controversial, they are appropriate for determination by a single expert. Referencing observations of Birss LJ (with the agreement of Sir Geoffrey Vos C and Arnold LJ) in Stellantis Auto SAS v Autoliv AB [2024] EWCA Civ 609, [2024] 1 WLR 4742 at paragraphs 62 and 63, Ms Goodman points out that: (i) "the utility of single joint expert evidence is not confined to uncontroversial matters"; and (ii) separate experts may well be appropriate where there are "multiple schools of thought", but that is “a quite specific state of affairs, very different from the kinds of differences of opinion one sees with expert evidence generally”. The defendant also submits that, given the constrained time-frame before the trial is scheduled to take place in February 2026, there is considerable sense in single joint expert evidence, which will be a swifter process than the typical directions for separate expert evidence require.

Ms Goodman invites the court to hold that this is a case in which considerations of proportionality must take centre ground. The defendant submits that a single joint expert is more proportionate (as it represents a significant costs saving), and accordingly ought to be ordered in these proceedings. Two considerations arise with respect to proportionality: (i) the fact that the primary remedy which the claimants seek is unrealistic; and (ii) the parties' staggeringly different financial means. As regards proportionality, first and foremost the claimants seek injunctive relief. That is the primary remedy they seek because they say that damages would not be adequate as a remedy. The defendant submits that the injunctive relief which the claimants seek is both unrealistic and unprecedented because it would put the claimants in a better position than if there had been no misuse of the claimants’ confidential information. The claimants are seeking, in essence, for the defendant to be restrained by a non-competition covenant lasting two years beyond the end of his year’s garden leave - in circumstances where his employment contract does not itself contain any non-compete covenant. Self-evidently, the claimants will be placed in a better position than they would otherwise have been but for the defendant's actions. This is said to be unrealistic, and to lack any basis in precedent. Accordingly, considerations of proportionality ought to be tempered by the unrealistic position adopted by the claimants in these proceedings. A second consideration is the financial asymmetry between the parties. This is relevant to both limbs of the overriding objective. Ms Goodman says that the claimants' propensity, and ability, to incur eye-watering costs will be readily apparent to the court. The defendant is a private individual of limited means. A single joint expert will enable the defendant to be able to participate in the proceedings on a more level playing field. It is therefore more just, and will limit the overall costs of the proceedings.

Ms Goodman then moves to consider the five topic headings for expert evidence, as follows: