HT-2013-000028 - [2025] EWHC 847 (TCC)

The second matter in issue is the so-called contested evidence. This falls into three categories.

The first is a number of reports that were previously produced and served in this litigation, which are helpfully listed in Appendix A to Mr Leader's 14^th statement. I do not propose to recite them. As I said, my reasons for my decisions are going to be, in the interests of time, slightly shorter and in that sense less detailed than they might otherwise be.

The claimants have relied on these, if I can call them this, old reports when disclosing key documents in rebuttal in purported compliance with the order of O'Farrell J for the service of factual evidence, expert evidence and key documents in rebuttal.

The claimants say that they do not seek to adduce these reports, which are in the form of experts' reports, as expert evidence and do not intend to call the makers of the reports to give evidence. That immediately raises the question of what reliance is being placed on them and what weight can be attached to them. What is said by the claimants is that the reliance sought to be placed on them is reliance of their instructed experts for the purposes of the upcoming trial, and that their experts seek to rely on the previous reports in the context of the issue of the volume of oil that was spilt in 2008.

As will be apparent from my observations in the course of the hearing, I have some difficulty in understanding how this point, that is volume of oil spilt in 2008, has found its way into these proceedings, or at least found its way into these proceedings at this stage, with the suggestion that it raises a new point.

There was, on the face of the pleadings, an issue between the parties as to the volume of oil spilt in 2008. However, by the time it came to the applications before O'Farrell J and that is clear from her judgment. As far as she was concerned, the issues that remained to be dealt with were the adequacy of the clean-up operation and what should be done or what the court might be able to do if it were found that the clean-up operation was inadequate. The question was, therefore, whether there was still what might be called 2008 oil present, that ought not to have been present, rather than the volume that was spilt in 2008.

The claimants initially seemed to argue that the volume of oil spilt in 2008 had come back into play because of a new case advanced by the defendant in amendments to the Defence. Again, I simply do not understand that because the case as to the volume of oil spilt had always, in one sense, been in issue, but, at the risk of mixing my metaphors, seemed to be water under the bridge.

It seems to me that if the volume of oil was a matter that that the claimants relied on as going to the volume of oil that remained, it was always in issue and it was a matter for the claimants’ case. The defendant had always said it did not accept the figures and, therefore, to the extent that the claimants intended to rely on how much oil had been spilt as evidence of how much oil remained, that is patently a matter that could and should have been raised considerably earlier in the present proceedings. It does not arise out of amendments to the Defence.

However, the position is that the claimants’ experts in their responsive reports referred to what I have called the old reports as part of their response to the defendant's evidence. The old reports are not evidence in themselves and there is nothing particularly surprising in an expert placing some reliance on another earlier report, including one prepared by someone else. It is very much a matter for the court to decide what weight to give to evidence of the experts called at trial that is predicated on some other report whose author is not being called to give evidence. It is certainly not the case, as Dr Blake appeared to suggest, that reliance on other materials is something that the court would only permit if the underlying documents were some sort of peer reviewed academic papers.

The effect of the defendant's objection to the claimants’ relying on these old reports is that the court should somehow disentitle the claimants’ experts from referring to these reports and explaining what reliance they place on them, including reports previously served by the defendant.

The defendant argues that if the court does not do this, and somehow disentitles the claimants’ experts from referring to the old reports, it will open up a whole raft of evidence because the defendant and the court will have to go into all of the old reports as if they were themselves evidence and as if their authors were being called to give evidence. The defendant says that it will need to serve further responsive evidence and that if it does not have the opportunity to do so the process will be fundamentally unfair.

Much of this submission is predicated on the argument that this issue, that is volume spilt in 2008, is a central issue or has become the central issue in the claimants’ case, albeit the defendant's position is that it is not relevant at all.

With respect to the submissions made to me, it does seem to me that this was all overstated. The volume of oil spilt in 2008 may be an issue but it is not the key issue. The evidence that will be adduced at trial is that of the claimants’ experts. They are properly entitled to refer to other reports that preceded them. All of those reports have been available to the defendant's experts and, if there was some matter that the defendant’s experts wanted to raise from them, it was open to them to do so.

All that has happened is that the claimants’ experts have referred to these reports in their responsive reports and the court will decide what weight to give to the expert evidence adduced in reliance on those old reports. There simply does not need to be a further round of responsive reports because the claimants’ experts have done that and it does not open up a whole new raft of evidence or area of dispute.

That is the general position. There is an exception, which is the so-called Wereley Report, which seems to me to fall into a slightly different category and is the second category of contested evidence. Insofar as it is needed, I give permission to rely, in the sense that I have already indicated, that is by reference in another report of an expert being called at trial, on the unsigned report of Mr Wereley. That has now been signed, and that seems to me to simply have regularised the position. But I do not give permission to rely on any further evidence that Mr Wereley might have given in supplement to his original report.

The original report, as Mr Hyam has pointed out, was relied on by Mr Rogers, the claimants’ expert, and responded to by Dr Boehm. They are both experts in their own fields and they were in expressing views on a report of someone in a different field. They are in the same position. There is no need for the defendant to obtain further responsive evidence to an expert who is not being called.

Although, as I have said, signing of the report regularises the position, adding to it does not and that is not to be permitted.

The third category of contested evidence is the so-called December sampling. I have heard in the course of the evidence, and indeed it was set out in the evidence particularly of Mr McCloskey, that the defendant's position is that they took issue with the manner in which the claimants intended to carry out sampling almost from the beginning of steps taken in compliance with the Order of O'Farrell J.

O’Farrell J ordered that the experts of like disciplines should “have an initial meeting to discuss the methodology for carrying out any further testing and sampling in relation to the issues in the case … and to continue meeting as often as necessary and for as long as necessary … in order to ensure that the experts understand and are agreed upon the general scope of the expert issues in this case”. I have been referred to a note of a single meeting of the experts held on 31 May 2024 in purported compliance with this order. The note is in the form of a quasi verbatim note of who said what. It is almost impossible for the court to decipher what was agreed and there appears to have been no attempt to reduce the outcome of the discussion to a coherent expression of what testing and sampling methodology was agreed and what the issues were understood and agreed to be. That was not expressly ordered by the court but common sense and good order dictated that that should have been done. It is at least apparent from the notes of that meeting, however, that the nature of sampling or the manner in which sampling was to be undertaken was under discussion, as ordered by O'Farrell J.

What followed was that the defendant set out more fully what it considered to be wrong, putting it broadly, with the claimants’ approach to sampling. That was known about in June 2024 which was when the sampling was carried out and whether shortly before the sampling was carried out or when it was being carried out or shortly afterwards frankly does not matter. The defendant’s position was known about. Despite that, no further sampling was carried out by the claimants between June and December 2024.

As Dr Blake submitted, that appeared to be because the claimants’ position was that the so-called biased sampling that they had carried out was the appropriate way to carry out sampling rather than something that might, in layman's terms, have been regarded as more representative.

It is not, I therefore accept, the case that further sampling was not carried out by the claimants until December 2024 because they did not understand the reasons for that being appropriate. I do not criticise them for carrying out sampling in June in the manner that they did. That was what they intended to do and they made it clear. Whether the claimants adopted an appropriate methodology and the validity of that sampling are matters for trial. But knowing, as they clearly did, what the defendant said was wrong with that approach, they did nothing about it until December 2024.

It may be thought from that that my conclusion would be that the claimants should not be permitted to rely on the further sampling. However, once again, I take the view that the defendant protests too much. It is not uncommon about further sampling and testing being conducted after a first round and before the trial and there is nothing particularly exceptional in this case about that. It is very much a matter for the court to decide whether a party should be permitted to rely on such further evidence.

In this case, the results of the further sampling were shared with the defendant immediately they were received. Further it appears that the defendant's experts were capable of addressing that evidence when they came to hold without prejudice discussions and to produce a joint statement in mid-March, approximately ten days ago.

I accept, as Dr Blake submitted, that observations of the experts made in the joint statement are not the same as a further responsive report. But what they do indicate is that the defendant's experts have no particular difficulty in addressing these further samples and in setting out their position in relation to them. In doing so, the defendant’s experts did not identify any further sampling or testing or analysis that they would wish to undertake and, when asked at the hearing, the defendant was unable to identify anything the experts would wish to do to respond further.

I, therefore, give the claimants permission to rely on the December sampling but I will make provision for the defendant's experts as appropriate to serve a short responsive report to the new samples. Bearing in mind that they have already set out their areas of disagreement in the joint statement, it seems to me that that can be done in fairly short order.