Due regard must be had to time constraints when introducing new expert evidence. In this case the judge rejected the Defendant’s application to rely on an expert report they had commissioned as there was not enough time before the trial.
The case originated from a road traffic accident in 2013, in which the Claimant was hit by the Defendant’s car while cycling and suffered a severe traumatic brain injury. The Defendant admitted full liability soon after a claim form was issued in 2016, leaving it to the High Court to rule on the award of damages. The trial on quantum was scheduled to take place over ten days in April 2021.
The parties’ initial positions varied enormously. The Claimant submitted an initial schedule of loss in January 2019 claiming a total of £12.5 million. The Defendant’s counter schedule, served in March 2020, valued the claim at £130,000. The disparity revolved around the Claimant’s hypothetical needs if the accident had not occurred. The Defendant argued that due to pre-existing learning difficulties the Claimant was always going to need the round-the-clock care which he was in fact now receiving. The Claimant, acting at all times through a litigation friend, disputed this.
Punctuality is the virtue of the bored.”
Evelyn Waugh
Early on the court had given permission, as is required by Civil Procedure Rule 35.4(1), for each party to rely on evidence from named experts, the Claimant having six and the Defendant ten. In March 2020, after the Defendant served his counter schedule, these experts met for a round-table meeting which did not succeed in narrowing the scope of disagreement.
It was shortly after this meeting, in April 2020, that the Defendant commissioned a new report from a hitherto uninvolved expert, with the hope of strengthening his position on the Claimant’s care needs. The expert was Dr Wright, a paediatric neuropsychologist with expertise in learning difficulties. Crucially, the Defendant’s legal team did not inform either the Claimant or the court of this development, and continued to remain silent after Dr Wright submitted his report in August 2020. It was not until 1 October 2020, after the Defendant had consulted with his other experts, that he applied to court for permission to rely on Dr Wright’s report.
It fell to HHJ Cotter QC, in a case management hearing on 17 November 2020, to consider the Defendant’s application. He stated that granting the application would necessitate either moving the trial dates, or causing prejudice to the Claimant given the short window available for analysing Dr Wright’s report and forming a response to it. The judge was disinclined to both these options: the former would “inevitably lead to very significant delay and the waste of valuable court resources“, while the latter would place an “unrealistic and too tight” timeframe on the Claimant.
In reaching his decision, the judge applied the recent case T v Imperial College Healthcare NHS Trust [2020], in which Stewart J laid down four factors for the court to consider in late applications to rely on new expert evidence. These are: whether there is a good reason for the lateness; the significance of the new evidence; the potential prejudice to each party; and the overriding objective to deliver justice while bearing in mind the court’s limited resources.
Most of the factors weighed against the Defendant, although the second factor, the significance of the new evidence, proved contentious. The judge rejected some of the Claimant’s submissions in holding that Dr Wright’s report would be “advantageous“, “of value“, and “able to give the court some assistance“. However, this did not entail crossing the threshold of “significant“. The judge emphasised that the matter of the level of care necessitated by the Claimant’s learning difficulties had already been addressed “in some depth” by experts on both sides of the case, both of whom were neuropsychologists. Ultimately, the judge ruled that the significance of the new evidence was not so great as to outweigh the other relevant factors.
Surprisingly, the judge criticised not just the delay in the Defendant’s disclosure of the new report, but also the late commissioning of the report itself. He noted that in September 2019 one of the Defendant’s experts, Dr Baxendale, had advised consulting an expert who specialised in learning difficulties. The Defendant did not do so until April 2020, by which point it is not certain his application would have succeeded even if he had kept the Claimant and the court informed.
This case reminds litigants of the long timescales which the courts expect in the provision of expert evidence, and the imperative to act as early as possible. It also shows the importance of good conduct at all stages in the process. More than once HHJ Cotter QC voiced his dismay that the Defendant had not shown the expected “cards on the table” approach, and this appears to have played no small part in his deliberations.
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