Edwards v Bruce & Hyslop (Brucast) Ltd

A single joint expert owes an equal duty of openness to both parties and an overriding duty to the court. Private communications with one party about the substance of the expert evidence are impermissible. Where such communications may have tainted the expert’s independence, the court may permit the affected party to rely on its own expert, even in a modest-value claim where a single joint expert would ordinarily be proportionate.

Permission to adduce further expert evidence is a case-management decision. The court must consider the nature and number of the issues, the reason for the further evidence, the sums and interests at stake, its effect on the trial, delay, other special features and the overall justice of the parties. An appellate court should interfere only where the decision falls outside the generous ambit of discretion.

The claimant brought proceedings concerning payment and alleged defects in replacement balconies supplied for the defendant’s listed property. The parties had agreed to rely on an architect, Mr Brotherhood, who was appointed as a single joint expert.

After producing an initial report broadly favourable to the claimant, Mr Brotherhood produced a later report adverse to it. The claimant alleged, and the defendant accepted, that the defendant’s solicitors had communicated privately with the expert. The county court permitted the claimant to rely on a report from Mr Potter. The defendant sought permission to appeal, challenging that case-management decision and arguing that the experts should first have met.

1. Application dismissed. The order permitting the claimant to rely on its own expert evidence was upheld.
2. Permission to adduce further expert evidence is governed by the factors identified in Cosgrove v Pattison [2001] CP Rep 68, including the issues, the reason for the evidence, the sums and interests at stake, its effect on the trial, delay, special features and the overall justice of the parties. The ordinary preference in a modest claim remains a single joint expert, as recognised in Daniels v Walker [2001] WLR 1382, but that preference is not absolute.
3. Under Peet v Mid Kent Health Care NHS Trust [2002] 3 All ER 688, separate dealings between one party and a single joint expert, without the other party’s prior written consent, must not occur. Such dealings are inconsistent with the expert’s equal duty of openness and confidence to both parties and overriding duty to the court.
4. The undisclosed communications had potentially affected Mr Brotherhood’s independence, particularly when the first and second reports were compared. The usual single-joint-expert arrangement was therefore no longer tenable, and refusing the claimant’s own expert evidence would have been manifestly unjust.
5. The decision was a case-management decision. Applying Wallbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427, the appellate court could not interfere because the judge had applied the correct principles and reached a decision within the generous ambit of discretion.
6. There was no requirement under CPR Part 35 or Daniels v Walker to require Mr Potter, who had no status as an expert in the proceedings, to meet Mr Brotherhood before the claimant applied for permission to rely on his evidence. Such a course would have been pointless and potentially wasteful.
7. The allegations against the county court judge and the applications concerning his recusal were unjustified. The application for permission to appeal was misconceived and dismissed.

High Court (Queen’s Bench Division): Mr Justice Coulson dismissed the application for permission to appeal from the order of His Honour Judge MacKay dated 27 March 2009. The order permitting the claimant to rely on its own expert’s report remained in force.