[2024] EWHC 1071 (TCC)

Instead, on 15th March 2024, the defendants made an application to the court for an extension of time to the 3rd May to serve expert evidence and for that evidence to extend to matters agreed and not agreed. Although this pre-trial review has brought to light a discrepancy between the date when the parties thought this trial was to commence and the date in the court diary, which has fortunately been addressed, that date of the 3rd May has to be seen against the context that the parties had already been directed to provide their opening submissions by the 24th May, that they expected the court to be reading from the 3rd June and expected the trial, in the sense of the hearing, to commence on 10th June. I shall return to that in a moment.

The application made on the 15th March was an in time application, not an application for relief from sanctions as the claimant at one point appeared to contend, but, in my view, no satisfactory explanation has been offered for why a report was not filed, if not by that date, by a later date and before this hearing, so that the claimant and the court could know what the scope and relevance of the report that the defendants wished to file was, or wished to rely on was. This is particularly so where the defendants positively said in the application notice that they wanted to have this application heard at the PTR.

Mr. Twigger submitted that it would not have been helpful, as I suggested, to ask the experts to meet again and reconsider their position in the light of the defendants' view as to or issues with the factual assumptions and findings they said the experts had wrongly made. He submitted that the underlying problems with the experts’ approach to the facts in the joint statement were so complex that that would have been an unhelpful approach. He also submitted that if Dr. Owens' report had been served, it would have meant that the defendants went first, and then, assuming the court gave permission for a further report, Dr. Huggett would have responded already knowing what Dr. Owens was going to say. Neither of those submissions seems to me to provide a proper explanation for the absence of any report from Dr. Owens or for why this matter has been left to be addressed at the pre-trial review five weeks before the start of the trial. I refer again to the dates that I mentioned a moment ago.

Had the defendants served a report which elaborated on what had been agreed, and perhaps addressed the underlying assumptions which the defendants say are wrong in fact, there could have been a sensible review at the pre-trial review and/or at trial as to how much of that report was helpful to the court, bearing in mind the terms of the order on the CMC, but also bearing in mind that that was not somehow writ in stone. Instead, the approach has been to serve no report at all on the basis that a report which addresses matters agreed as well as not agreed does not comply with the order of O'Farrell J and to wait until the pre-trial review to make the application which is now before me.