Cook & Anor v National Westminster Bank Plc

An appellate court should not order a new trial to enable reliance on expert evidence which could have been available at the original trial, particularly where no reason for its omission is given. Expert reports and any agreed statement must identify the real issues between the experts. Experts cannot reserve a materially different issue for oral evidence. A trial judge may properly treat oral expert evidence as disproportionate where the reports disclose limited disagreement. An appeal based on factual findings open to the trial judge, or on a causation case not pleaded or supported by the evidence served for trial, has no real prospect of success.

John and Doreen Cook appealed, or sought permission to appeal, from an order made by Mr Recorder Elleray QC in the Preston County Court. The judge awarded them £2,500 for dishonoured cheques but rejected their other claims against National Westminster Bank plc.

The proposed appeal focused on bank charges which the judge had found to be excessive. The Cooks contended that the overcharging caused the failure of their newsagency and off-licence business. Their expert evidence, however, did not identify that issue, and the experts had not given oral evidence because the parties considered the areas of disagreement limited. The central questions were whether the trial judge had erred in failing to address causation and whether the matter should be adjourned to investigate further expert evidence.

1. Disposition. The application to adjourn the permission application for further enquiries of the proposed experts was dismissed. Permission to appeal was also refused because the proposed appeal had no real prospect of success.
2. Findings of fact and the pleaded case. The trial judge had heard and seen the witnesses. His adverse findings concerning the Cooks’ recollection and allegations against the bank were open to him and there was no realistic prospect that an appellate court would disturb them. Although excessive charging had been found, the pleaded case did not assert that it caused the business to fail. Nor had that alleged causal connection been identified in the expert report relied upon at trial.
3. Expert evidence and conduct of litigation. The judge was entitled to proceed on the basis of the expert reports and the statement of matters agreed and disagreed. Given the limited areas of disagreement, he was entitled to conclude that requiring the experts to attend for cross-examination would involve disproportionate expense. Expert reports and agreed statements must identify the real issues requiring determination. Experts cannot properly omit a material issue from their reports and then seek to give materially different evidence orally at trial.
4. Proposed new evidence. If further evidence from Mr Jenner or Mr Lucas were admitted, the likely consequence would have been a new trial. The evidence could have been included in the report or identified in the experts’ agreed statement. In the absence of any explanation for its omission, there was no basis for ordering a further trial.
5. Delay. The application was out of time, but the explanation for delay was accepted. The refusal therefore rested on the absence of a real prospect of success, rather than delay.

• Court of Appeal (Civil Division): Application for permission to appeal from the Preston County Court order of 2 May 2002 dismissed. Application to adjourn for further expert enquiries also dismissed.