Gurney Consulting Engineers v Gleeds Health & Safety Ltd & Anor

Under Civil Procedure Rules 1998, a party may use an expert report disclosed by another party where that report was disclosed with permission under CPR 35.4. CPR 35.11 does not require fresh permission merely because the original disclosing party has subsequently left the proceedings. The rule applies to any report disclosed in accordance with CPR 35.4, not only reports disclosed by parties who remain involved at trial. A party relying on such a report should identify the reports and significant parts relied upon so that objections based on unfairness or disproportionality can be addressed. The court may have regard to the report as a whole, but expert evidence is assessed by its quality, particularly through oral evidence, rather than by the number of experts reaching the same conclusion.

Gurney, sued in relation to the collapse of refurbished properties, brought contribution claims against several participants in the works, including the Gleeds companies. The claims against the other participants were settled before trial. Gleeds sought to rely on expert reports disclosed by those former parties and on agreements reached under CPR 35.12.

Gurney argued that CPR 35.11 applied only while the original disclosing party remained a party, and that Gleeds required fresh permission under CPR 35.4(1). The court determined the construction of those provisions and gave directions regulating Gleeds’ proposed use of the reports.

1. Construction of CPR 35.11. CPR 35.11 applies where one party has disclosed an expert report and another party wishes to use it at trial. Disclosure necessarily presupposes compliance with CPR 35.4, including the court’s permission. A second application for permission is therefore unnecessary.
2. The reference to a party which has disclosed a report is not limited to a person who remains a party when another party seeks to use the report. Reports disclosed by Pearson, Styles and Wood, GMK and Fourways could therefore prima facie be used by Gleeds, notwithstanding the settlements.
3. Trial management and fairness. Gleeds was directed to notify Gurney which reports it wished to use, which parts were particularly important, and the purposes for which they would be relied upon. Gurney could then raise any specific objection, including an objection that reliance on a particular report or passage would be disproportionate or unfair. Although the court should generally have regard to the report as a whole, that did not permit selective or misleading reliance.
4. The approach was consistent with the overriding objective in CPR 1.1. It would be artificial to ignore entirely the reports or the contribution made by the former experts to the CPR 35.12 joint statement. However, little weight should generally be attached to the views of experts who did not give oral evidence. Similar conclusions in several reports did not determine causation; the quality of the expert evidence, particularly the oral evidence at trial, was decisive.