Meredith & Anor v Colleys Valuation Services Ltd & Anor

Where a party fails to disclose an expert report within the time directed, the court must address the resulting sanction under CPR 35.13 and CPR 3.9. It must consider all the circumstances, including each factor in CPR 3.9(1)(a)–(i). A failure to provide a good explanation does not remove the need for that assessment.

Debarring expert evidence is a severe sanction. Where the report has been served before trial, the trial timetable remains workable, and the opposing party can prepare adequately, the court should consider proportionate alternatives such as costs sanctions. An order debarring evidence in those circumstances may be plainly wrong and inconsistent with the overriding objective.

The claimants brought professional-negligence proceedings concerning the valuation and surveying of a house. The second defendants, their surveyors, were permitted to rely on valuation evidence, but served their valuer’s report late.

On 8 August 2001, Her Honour Judge Kirkham extended time for a late lay witness statement but debarred the second defendants from relying on the valuation expert’s report. The second defendants applied for permission to appeal and, if permission were granted, appealed. The central issue was whether the sanction should stand and whether relief had to be considered under CPR 3.8 and CPR 3.9.

1. Appeal allowed. The order debarring the second defendants from relying on Mr Elliott’s valuation evidence was set aside. Time was extended so as to validate the report’s actual service.
2. Lord Justice Peter Gibson held that CPR 35.13 imposed the relevant sanction for failure to disclose an expert report. The reasoning in Bansal v Cheema therefore applied. The court had to consider relief under CPR 3.8 and CPR 3.9, including all the circumstances and each of the nine matters listed in CPR 3.9(1)(a)–(i).
3. The judge had properly considered prejudice to the claimants but had not considered the prejudice to the second defendants or all the other relevant matters. The delay was not deliberate, resulted from legal representatives’ communication difficulties, and followed an otherwise expedited case. The report was served eleven days after the agreed extension and about five weeks before trial.
4. The trial date could still be met. The report was short and disclosed no material feature likely to take the claimants’ expert by surprise. Allowing the evidence would maintain equality between the parties and was unlikely to extend the trial. In those circumstances, debarring the evidence was disproportionate and inconsistent with the overriding objective. The judge could instead have imposed costs sanctions.
5. Baron v Lovell turned on materially different facts and provided little assistance. The Court of Appeal remained very slow to interfere with case-management decisions, particularly where intervention might jeopardise the trial timetable.
6. Lady Justice Hale agreed with the result and reasoning. She added that urgent applications must be prosecuted promptly and that any additional costs caused by the late appeal could be reflected in the trial judge’s costs order.

• Court of Appeal (Civil Division): Appeal from the case-management order of Her Honour Judge Kirkham dated 8 August 2001. The order was set aside and time was extended to validate service of the valuation report.