Yorke v Katra

Where a court directs the use of a single joint expert, each instructing party may give instructions under Civil Procedure Rules 1998, rule 35.8. The court cannot insist on a single letter embodying both parties’ instructions where the rules permit separate instructions. A strike-out for failing to comply with such an order rests on a mistaken basis and should not stand. Nor should an appeal be rejected merely because the litigant used the wrong form where the substance of the application is clear. Procedural discretion must be exercised on a correct understanding of the court’s jurisdiction and the applicable rules.

The claimant brought a county court claim for approximately £2,800 arising from disputed building work. To investigate the alleged defects, the court directed the use of a single joint expert. The defendant signed a proposed joint instruction letter but removed two sentences concerning the parties’ contractual positions.

The district judge treated this as non-compliance, struck out the defence and counterclaim, and a further district judge refused to set the order aside and ordered costs. A circuit judge dismissed the defendant’s application on paper. A separate application before the Oxford County Court was rejected as misconceived. The central issue before the Court of Appeal was whether the underlying procedural orders and the dismissal of the application could stand.

Appeal allowed. Lord Justice Buxton delivered the judgment, and Lord Justice Dyson agreed.

1. The central error was the assumption that a single joint expert had to receive one composite letter of instruction. Under Civil Procedure Rules 1998, rule 35.8, where a single joint expert is used, each instructing party may give instructions to that expert. The court therefore had no jurisdiction to insist that both parties’ instructions be contained in a single letter.
2. The defendant’s wish to provide his own instructions was consistent with the rule. The two deleted sentences were background to the parties’ contractual contentions and did not form part of the expert’s necessary task. The order striking out the defence and counterclaim was consequently based on a mistaken understanding of the applicable procedure.
3. That mistake materially affected the subsequent decision. The circuit judge had proceeded on the footing that there had been a valid failure to obey the district judge’s order. He could not properly dismiss the application on that basis. Nor could the application be rejected solely because the wrong form had been used or permission to appeal had not been sought, since its substance was clear and those technical matters could not stand alone in the circumstances.
4. The appeal was properly entertained despite the procedural history. Although the matter raised no important point of principle or practice, its lengthy and unhappy history supplied a compelling reason for transfer under Civil Procedure Rules 1998, rule 52.14(1), supported by section 57 of the Access to Justice Act 1999. The earlier reconstitution of a Court of Appeal judge as a High Court judge was authorised by section 9 of the Administration of Justice Act 1981.
5. The notice of appeal was amended to identify the circuit judge’s order. The relevant orders of the district judges and the circuit judge were set aside. The signed form of instruction was to be sent to the expert. The defendant received the costs of the appeal and the successful applications; the order requiring him to pay the claimant’s costs of the action, and the charging order, were set aside. The Oxford County Court costs order was left undisturbed.

• Court of Appeal (Civil Division) — In [2003] EWCA Civ 867, the appeal was allowed. The notice was amended to appeal from the circuit judge’s order, the relevant earlier orders were set aside, and consequential costs and procedural orders were made.
• Circuit Judge — The application challenging the district judges’ orders was dismissed on paper on 19 April 2002.
• District Judges — The defence and counterclaim were struck out for alleged non-compliance with an order concerning joint expert instructions. The application to set aside was refused and costs were ordered against the defendant.
• Oxford County Court — A separate appeal from the district judges’ orders was rejected as misconceived. The Court of Appeal did not disturb the costs order made in that application.