Hanley v Stage & Catwalk Ltd (t/a Acorn Studios) & Ors

Permission to adduce late expert evidence is a case-management decision requiring a balance between procedural discipline, efficient litigation and the requirements of justice. Late service does not automatically require exclusion where the evidence may assist determination of an important issue and the opposing party is given a fair opportunity to respond. On appeal, the court must not substitute its own view for that of the first-instance judge. Intervention is justified only where the decision is wrong within CPR 52.11(3), including an unreasonable exercise of discretion outside the generous ambit of permissible disagreement, or where there has been a serious procedural irregularity. The decision turned on unusual facts and did not relax the ordinary rules governing late evidence.

The claimant brought a substantial personal injury claim arising from a fall at a nightclub, with liability having been resolved at 65 per cent of the full value. A quantum trial was imminent. Shortly before trial, the defendants sought permission to rely on statistical expert evidence concerning life expectancy, after the claimant had served further medical evidence increasing his estimated life expectancy. Poole J permitted both sides to adduce further evidence and allowed an application to adjourn the trial if necessary. The claimant appealed against permission to call the defendants’ statistician. The central issues were whether the late evidence should have been admitted and whether the case-management decision was properly open to the judge.

1. Appeal dismissed. There had been no serious procedural or other irregularity. The question under Civil Procedure Rules 1998, rule 52.11(3), was whether the judge’s decision was wrong.

2. Permission to rely on late expert evidence involves a balance. Respect for court orders and efficient case management are important, but the overriding consideration remains that justice must be done. The judge was entitled to regard the statistical evidence as potentially valuable, notwithstanding criticisms of its methodology, because those criticisms could be tested at trial.

3. The lateness of the defendants’ application was inexcusable, but the claimant was also seeking to improve his evidence on the same issue at a late stage. The judge was entitled to conclude that either both parties should be permitted to develop their life-expectancy evidence or neither should be.

4. On an appeal from a discretionary case-management decision, the appellate court must not interfere merely because it might have exercised the discretion differently. Applying Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311 and G v G (Minors: Custody Appeal) [1985] 1 WLR 647, intervention requires a decision outside the generous ambit within which reasonable disagreement is possible. The test was especially strict for an interlocutory appeal shortly before trial, consistently with Croft v Jewell (1993) PIQR 270.

5. The decision did not open the floodgates to late evidence or new issues. The ordinary rules and procedures remained applicable. The result depended on the particular combination of an important issue, reciprocal late evidence and the judge’s assessment of the requirements of a fair trial. The appeal was dismissed with costs.

• Court of Appeal (Civil Division): The appeal from Poole J’s interlocutory order of 26 October 2001 was dismissed with costs.
• High Court of Justice, Queen’s Bench Division: Poole J permitted the defendants to adduce Professor Strauss’s statistical evidence and also permitted the claimant to adduce further evidence from Mr Gardner.