CA-2025-000517 - [2025] EWCA Civ 1061

The issue

The nub of the complaint is narrow. It is that the CAT erred in its approach to the expert evidence of BT in relation to the allocation of certain costs of BT in providing the SFV services. This is a Limb 1 issue. The CR’s case is that BT deliberately failed to produce important evidence leaving the gap to be filled in the evidence of its expert who was however then starved of assistance and relevant information by BT. The CAT in the Judgment was critical of BT’s approach to the evidence and was also critical of the conclusions of the expert in substantial part because it was based upon inadequate evidence. In these circumstances, the CAT should have, but did not, draw adverse inferences against BT by, in effect, ignoring the evidence of BT’s expert. The CAT failed to apply the principle that where a party is found to have failed to adduce evidence that it should have adduced an adverse inference should be drawn against it. The conclusion of the CAT on the evidence was irrational. That failing was compounded by the CAT holding, against the CR, that it failed to cross-examine BT’s expert on one part of her evidence. It was important to the future conduct of cases that this Court deprecate the conduct of BT by finding that the CAT erred in its approach to the evidence.