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Hajigeorgiou v Vasiliou, Court of Appeal, 10 March 2005

16 March 2005
The issues

Expert Evidence – Beck v Ministry of Defence – Case Management – A Second Expert

The facts

The Claimant brought a claim against the Defendant for breach of the Defendant’s covenant of quiet enjoyment in a lease of restaurant premises at Palmers Green, London. Judgment was entered in favour of the Claimant on issues of liability and an assessment was ordered. The Claimant sought damages for loss of profit of the restaurant. The Defendant at a Case Management Conference argued that there was a lack of documentation on the Claimant’s part regarding acquisition and refurbishment and that expert evidence was necessary from a restaurant valuation specialist.

At the Case Management Conference each party was given permission to rely on an expert in the field of restaurant valuation and profitability. Specifically the order provided “both parties do have permission if so advised to instruct one expert each in the specialism of restaurant valuation and profitability”.

A Mr Watson visited the Claimant’s premises by appointment in July and carried out an inspection. In September however the Defendant’s solicitors wrote for access for a further expert, a Mr Negus. The Claimant’s solicitors asked why another expert had been appointed but no explanation was forthcoming. The Defendants subsequently explained that Mr Watson had prepared a draft interim report on which reliance was not placed and it was in these circumstances that Mr Negus was instructed. The matter came before the Judge who decided that the Defendant needed permission to call a second expert and rely on his report and that that permission would be given but only on condition that the first report was disclosed to the Claimant. In coming to this decision the Judge relied on the decision in Beck v Ministry of Defence.

The Defendant appealed.

The decision

In giving permission the Order identified the experts only by their field of expertise. It had been suggested that there was a slip in the Order and that the Judge at the Case Management Conference had intended to give permission in respect of Mr Watson. That submission was not accepted. The terms of the order had been agreed by Counsel. The Claimant had not been restricted to a named expert and probably could not have been so in the circumstances. It would have been an unusual order so to have done in any event. It had been argued that in addition the Order had given permission to the Defendant to instruct one expert. One expert had been instructed. The Claimant had therefore argued that permission was needed to instruct a second expert.

However, the Court did not have power to give permission for the “instruction” of experts. CPR 35.4 did not refer to instruction but provided that no party might “call” or “put in evidence an expert’s report” without the Court’s permission. The words in the order “permission if so advised to instruct one expert” had to be construed therefore as meaning “permission if so advised to call and put in evidence a report from one expert”.

No point was taken by the Claimant as to the second inspection of the restaurant. To impose a requirement as a condition of giving Mr Negus permission to inspect the premises that Mr Watson’s report would have to be disclosed would have been unreasonable and disproportionate. The circumstances of this case were a far cry from a personal injury case where a second expert wished to conduct a second medical examination on the Claimant. This was not a case where the principals set out in Lane v Willis applied.

[Lane v Willis] Court of Appeal – 1971 – Established the Principal that a medical examination of any party to an action was an invasion of personal liberty and should only be granted when reasonable and in the interest of justice; the onus lay on the party who said it was unreasonable and would apply for an Order to stay that he was unable to properly to prepare his claim or Defence without examination].

The second issue related to the Judge below ordering that permission would only be granted if the report of Mr Watson was disclosed. Strictly speaking it was no longer necessary to rule on the point given the Court’s conclusions on the first issue. However it was of general importance.

It had been argued that Beck upon which the Judge had relied was wrongly decided. It was surprising that no one had taken the point in Beck that permission to instruct a second expert as opposed to call one was not needed. Beck however had in effect laid down the principal that the Court had the power to give permission to a party to rely on a second (replacement) expert which it should usually exercise only on condition that the report of the first expert was disclosed. This principal was important and was an example of the way in which the Court would control the conduct of litigation in general and the giving of expert evidence in particular. Expert shopping was undesirable and whenever possible the Court would use its powers to prevent it. Beck did not abrogate or emasculate legal professional privilege but merely said that if a party sought the Court’s permission to rely on a substitute expert it would be required to waive privilege in the first expert’s report as a condition of being permitted to do so.

It was not considered in Beck whether or not the condition of disclosure should relate only to the first expert’s final report or whether it should also relate to earlier draft reports. In the Court’s view it should not only apply to first expert’s (final reports) but also to the first expert’s reports containing the substance of his or her opinion.

Appeal allowed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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