[2024] EWHC 1071 (TCC)

That leaves the issue of the Order in respect of expert evidence. In written submissions, the claimant argued that it was not open to the defendants to adduce a full report of Dr. Owens, covering matters both agreed and not agreed, because there was no evidence that she had altered her expressed opinion from that in the joint statement and there was no application to adduce the evidence of a new expert for some legitimate reason.

The claimant also says that the defendants missed their opportunity to ask the experts, that is both experts, to address further issues or consider further evidence so that their agreement did not mislead the court, reflecting paragraph 13.6.3 of the TCC Guide.

In my judgment, these submissions are more submissions about the utility of any further report from Dr. Owens. The order on the CMC was that the report should be limited to matters not agreed but that was not writ in stone and it is not uncommon for reports to provide further information, sometimes helpful, sometimes unhelpful, as to the basis on which agreements were reached.

The defendants make out a tenable case that the joint statement does not address all the issues that it should, or proceeds on the basis of underlying factual assumptions made the experts or conclusions reached by them which are either wrong or open to challenge or examination at trial. The issue, however, is whether a further report of Dr. Owens would be of assistance to the court in addressing those issues, and/or whether that would put the claimant at such a disadvantage at this late stage that it would be wrong, having regard to fairness between the parties and the furtherance of the overriding objective, to permit the defendants to rely on such a report.

On balance, it seems to me that it would be more helpful to the court and more efficient if such a report were to be served. If there were no such reports, it would still be open to the defendants to cross-examine Dr. Huggett on these matters without the court having the benefit of the views of both of the experts on these matters, and the value and helpfulness of Dr. Huggett's evidence in cross-examination is likely to be diminished.

In that context, it is of some concern to me that, on the face of Dr. Huggett's report on the limited issue remaining in dispute, he appears to have considered a limited number of documents set out in Annex 1 to his instructions which appears to have been provided to him before the amendments to the Particulars of Claim. He lists out the full scope of the documents he has referred to which do, however, include the amended pleadings. It is self-evident that he has seen those from the context of the joint statement but it is not self-evident that he has seen all the documents that he ought to have seen.

Even without that concern, Mr. Twigger has taken me to e-mails relied upon by the experts to reach certain factual conclusions, which are then relied upon as supporting their views on robustness. He clearly has an arguable case that he can put to Dr. Huggett that the interpretation of these e-mails is wrong, and Dr. Huggett may be invited to express his views on an alternative basis. However, as I have already said, if that were to be done for the first time in cross-examination, it would be done without any notice to him as to the matters that were likely to be raised and any opportunity to consider them and formulate his response. That would not be in the interests of fairness and justice as between the parties.

If the defendants’ application had come before me promptly after 15th March 2024, I would have allowed it without hesitation. The difficulty now is that it is being determined five weeks before trial, and that what I have said about fairness and justice as between the parties may be rather different five weeks before the trial from what it would have been six weeks ago.

In written submissions, Mr. Heppinstall submitted that if Dr. Huggett is now required to produce a full report that will derail the trial and necessitate an adjournment. In oral submissions he has said it would be wholly unfair to the claimant to require Dr Huggett to produce a report at such short notice. However, if I allow the defendants to adduce a report of Dr. Owens, that would be equally unfair if Dr. Huggett had no opportunity to respond.

The defendants' response to the claimant's unfairness point is to be found in Mr. Smith's statement dated 15th March 2024. He made it clear in that statement that this application in relation to expert evidence would be dealt with at the pre-trial review, which was then fixed for 26th April but, for listing reasons, has taken place a few days later. He indicated that the defendants would be ready to serve Dr. Owens' report on the 3rd May 2024. He further makes the point that the claimant had been on notice of the defendants' position since the letter of the 23rd February 2024 and that it was open to them to instruct Dr. Huggett to prepare a further report in a time period that corresponded to that afforded to Dr. Owens.

It is probably clear from what I have said already that, in mu view, a far better approach would have been either to ask the court to hear this application as soon as possible, rather than leave it to the pre-trial review, and/or to provide Dr. Owens' report in any event with any argument as to the scope that it properly covered to be dealt with at the pre-trial review or at trial. However, on the other side of the coin, it seems to me that what the claimant has done is proceed on the basis that the defendants' application was bound to fail, or that summary judgment was bound to be entered, so that she could postpone any further instructions to Dr. Huggett until after this hearing. That was an unrealistic approach. Given the size of this claim, there could have been no objection to further expenditure on expert evidence and consideration at least of the issues raised in Stephenson Harwood's letter and Mr. Smith's statement - not least because it could be anticipated that those issues would be raised with Dr. Huggett at trial, even if no further report of Dr. Owens was permitted.

In conclusion, although it is far from a satisfactory position, it seems to me that the fair and efficient way to deal with this matter at this stage, without prejudicing the trial date, is to grant the defendants' application and then to give the claimant a further two weeks in which to serve a further report of Dr. Huggett. They will therefore be sequential reports, but it will enable Dr. Huggett to respond to the matters which it now appears will be raised by Dr. Owens so that their reports do not pass as ships in the night. There will be nothing to prevent them discussing matters further, reasserting the agreement they have already reached (if, as no doubt the claimants would anticipate, there is no change in either experts' view), or modifying them to the extent appropriate.

Accordingly, I refuse the application for summary judgment; I allow the defendants' application in relation to Dr. Owens' report, to be served by 3rd May; and I provide for Dr. Huggett to serve a further report in response by 17th May.

As to the attendance of the experts at trial, I think the practical approach to that is to assume they will attend trial and will be available for cross-examination, but should they reach further agreement which means that this position changes that can be addressed at the start of the trial.

That leaves one further matter on which I have not been specifically addressed, namely the third statement of Dr. Birnie. I have read that statement. It does, I think, veer into areas of opinion, but that is a matter that I can take into account in terms of the weight of the evidence when it comes to trial. The principal reason for relying on that evidence is to refute the suggestion that the optimiser is a viscous liquid and it seems to me that at this stage before trial it is entirely proper that that issue, which the defendants say with some justification they had not anticipated having to address, should be addressed by the further short statement that they wish to rely on. I will give permission for them to do so at trial.