Shepherd & Neame & Ors v EDF Energy Networks (SPN) Plc & Ors

Under CPR 35.11, any party may rely at trial on an expert report disclosed by another party, even where the disclosing party has subsequently ceased to participate in the proceedings. The rule is unqualified and is not confined to the party that originally disclosed the report. CPR 35.1 and the court’s case-management powers remain relevant to the proportionate use of expert evidence. Where the parties have complied with orders for expert reports and joint statements, reliance on reports from withdrawn parties may be permitted where the reports help explain the joint evidence and cause no material prejudice or disproportionate cost.

The claim concerned liability for a fire affecting several neighbouring premises. During the trial, claims against the second and third defendants were discontinued. The claimants then applied under CPR 35.11 to rely on expert reports disclosed by those defendants’ fire experts. The remaining defendant objected, arguing that the claimants already had adequate expert evidence and that further reports would cause unnecessary cost and difficulty. The central issue was whether CPR 35.11 permitted use of reports disclosed by parties who were no longer participating in the proceedings and, if so, whether reliance should be allowed in the circumstances.

1. Application allowed. The claimants could rely on the reports of the experts retained by the withdrawn defendants in the continuing trial.
2. CPR 35.11 is unequivocal and unqualified. It applies where a party has disclosed an expert report and permits any party to use that report as evidence. The wording does not require the disclosing party to remain a party when the report is used, nor does it restrict use to the party that originally disclosed it.
3. CPR 35.1 must be read with CPR 35.11. Although indiscriminate use of expert evidence is discouraged, the court may permit each party to rely on an expert in a material discipline where that evidence was reasonably accepted as necessary or desirable when the case was managed. CPR 35.7 illustrates the court’s power to direct the use of a single joint expert to save cost, time and resources.
4. The reasoning in Gurney Consulting Engineers v Gleeds Health & Safety Ltd [2006] EWHC 43 (TCC) was correct and applicable. Reports disclosed pursuant to court orders need not be disregarded merely because the original parties later withdraw. Their contents may be relevant to understanding joint statements, although little weight may attach to an expert who does not give oral evidence, and conclusions are not established by the number of experts expressing them.
5. Reliance was proportionate. The experts had contributed to joint statements, the remaining defendant had prepared for trial on the basis that they might give evidence, and there was no material prejudice. The defendant could call or cross-examine the experts, and any unnecessary costs could be addressed by a special costs order.