Armchair Passenger Transport Ltd v Helical Bar Plc & Anor

The fact that a proposed expert has been employed by, or connected with, a party does not automatically make the evidence inadmissible. The court must assess the nature and extent of the connection, whether the person has relevant expertise, and whether the person is aware of, willing and able to fulfil the overriding duty to the court. The question is one of fact and degree, not apparent bias. The court must also consider case-management factors under the Civil Procedure Rules, including the overriding objective, the alternatives available, delay, expense and the fast-track procedure. Any remaining concern may affect the weight of the evidence and costs rather than its admissibility.

The defendant appealed from an order of the Central London County Court setting aside permission to rely on an expert report concerning reasonable vehicle-hire rates. The proposed expert had previously been chief executive of the company from which the claimants had hired replacement vehicles. The lower court considered that this connection meant that justice could not fairly be seen to be done if he gave expert evidence.

The appeal concerned whether the lower court had applied the correct test and, if not, whether the expert’s evidence should nevertheless be excluded on the material before the court. The central issues were the relevance of the expert’s former connection, his expertise and independence, and the effect of case-management considerations.

1. The appeal was allowed. The order excluding the expert report was set aside and the earlier permission to rely on the report was reinstated.

2. The test of apparent bias applicable to a court or tribunal is not the correct test for deciding whether expert evidence should be admitted. The existence of an interest or connection with a party is not automatically disqualifying. The court must consider its nature and extent.

3. The relevant inquiry is whether the proposed expert has relevant expertise and understands the primary duty owed to the court, and whether, despite the connection, the expert is willing and able to discharge that duty. The decision is a matter of fact and degree and should be made promptly as part of case management.

4. The court must weigh the available alternatives and apply the overriding objective under the Civil Procedure Rules 1998. Relevant considerations included the expert’s declaration, the nature of the report, procedural delay, additional expense, the fast-track timetable and the likely need for cross-examination.

5. Mr McLean had substantial relevant expertise and had declared his duty to the court. His report disclosed no proper basis for inferring ill will, animosity or an inability to comply with that duty. His former employment and use of industry knowledge did not itself justify exclusion.

6. The defendant’s procedural failures and the additional costs did not justify excluding the evidence. Those matters could be addressed through costs. The evidence could be tested by cross-examination, and any limitation in its weight could also be reflected in costs.

1. High Court (Queen’s Bench Division): appeal from the Central London County Court allowed; the order of Judge Ryland dated 16 August 2002 was set aside and Judge Zucker’s order dated 27 June 2002 was reinstated.