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Bulic v Harwoods & Ors, High Court, 18 December 2012

8 January 2013
The issues

Expert evidence – single joint expert – Daniels v Walker – circumstances in which additional expert evidence may be called by a party.

The facts

The claimant claimed damages in relation to the serious mechanical failure of his Jaguar vehicle’s engine in 2009. The central issue was why the engine failed. The claimant alleged inadequate service on the part of the first defendant’s garage and in addition a design fault. The defendants argued that the failure was more likely to have been caused by an unidentified third party over filling with engine oil. The resolution of these issues was likely to turn upon relatively technical expert evidence. A single joint expert had been appointed. A week before trial the claimant made an application for leave to rely upon its own expert evidence from another expert. In such circumstances it was recognised that the defendant should be allowed to rely upon the joint expert as their expert. The claimant alleged that the joint expert lacked the requisite expertise and had provided an inadequate analysis of the engine failure; that there was apparent bias on his part, having regard to his acceptance of instructions from Jaguar and Land Rover after he had been instructed in this case. The judge rejected the claimant’s arguments. The claimant appealed to the High Court.

The decision

There were four grounds of appeal: first, that the judge had applied an inappropriate test departing from that laid down by the Court of Appeal in Daniels v Walker; second, that there was perceived bias on the part of the joint expert; third, that the judge had had erred by dismissing the submission based on the joint expert’s technical inadequacy; fourth, that the judge had erred on his assessment of the litigation as not being sufficiently ‘substantial’ to justify dispensing with a single joint expert.

Here, the expert evidence was far from peripheral, but was fundamental to the resolution of the main issue between the parties. It was also technical

In Daniels v Walker, Lord Wolfe had said that agreement to a joint expert should not prevent a party being allowed facilities to obtain a report from another expert and that in a substantial case the correct approach was to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue. Having obtained a joint expert’s report, the parties should, subject to the discretion of the court, and where their reasons for doing so were not fanciful, be permitted to do so. In Kay v West Midlands Strategic Health Authority, Judge MacDuff QC had referred to the test but had glossed it with the comment that such an application should only succeed in circumstances which were seen to be exceptional and to justify a departure from the norm. In this case the judge had appeared to adopt Judge MacDuff’s gloss.

Argument had been diverted onto a detailed analysis of various ‘tests as though the phrases used were of statutory significance. Lord Wolfe would have been surprised to find such an apparently legalistic approach being adopted 13 years after the advent of the CPR. No straight-jackets had been intended. The need for flexibility had to be recognised. Equally, the need to do justice between the parties, as emphasised by the overriding objective, was also important. What represented justice would much depend upon the facts of each case. It would distract to focus too analytically on the reasoning in other cases, however authoritative, where the facts were not truly comparable. So, where a court is concerned with a relatively peripheral issue, it was likely only to be in unusual circumstances that the services of a single joint expert would be dispensed with. So too a court was less likely to dispense with single expert evidence where the evidence was of a non-technical nature. There was also to be borne in mind the risk that where expert evidence went to a central issue, circumstances might arise where in effect the result would be trial by expert. Moreover, if the bar was raised too high, for litigants who lost faith in single joint expert evidence, there was a risk that this would become a significant disincentive to those otherwise inclined to take the ‘first step’ recommended by Lord Wolfe in Daniels.

Here, the expert evidence was far from peripheral, but was fundamental to the resolution of the main issue between the parties. It was also technical. The court was likely to obtain more assistance from comparing two experts on technical matters than would be the case in for example, Kay, where the court was concerned with the level of IT provision required to assist the young claimant. The court was unconvinced by the ‘bias’ ground. As to the third ground, the claimant might have a real sense of grievance if he were barred from introducing the criticisms made by his single expert of the joint expert at trial and having those criticisms properly evaluated. As to the fourth ground, it was not possible to provide a bright line boundary between substantial and insubstantial cases. Whether litigation was substantial could not be determined solely by reference to the amount claimed. The issues might be important to the parties or to the public generally for a variety of reasons other than purely financial considerations. The court was unable to derive from Daniels or any other case anything approaching a general principle to the effect that in claims of less than a certain monetary value, the court should decline to let a litigant to engage his own expert evidence where he had lost confidence in a joint expert.

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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