Charles Terence Estates Ltd v The Cornwall Council

Expert evidence must be limited to evidence reasonably required to resolve the proceedings. A very late application to rely on expert evidence engages the overriding objective and requires a careful balance between the importance of the evidence, the reason for delay, and the consequences of allowing or refusing the application. The court should be less ready to permit applications made shortly before trial, particularly where the delay is unjustified and the evidence would place the opposing party at a substantial disadvantage. Prejudice caused by an adjournment cannot automatically be treated as adequately compensable in costs.

The claimant sought unpaid rent under agreements made with district councils whose liabilities had passed to Cornwall Council. The Council contended that the agreements were unenforceable for improper purpose, lack of authority and mistake.

Less than two weeks before the liability trial, the Council applied for permission to rely on a 190-page expert valuation report concerning open market rents. The claimant argued that the evidence was peripheral, served late and could not fairly be answered before trial. The central issue was whether the evidence was reasonably required and whether the late application should be permitted under CPR Part 35 and the overriding objective.

1. The application was refused. Expert evidence concerning open market rental values was not reasonably required to resolve the proceedings within the meaning of CPR Part 35, rule 35.1. Rent was irrelevant to two of the Council’s three defences and peripheral even to the improper-purpose allegation.
2. Late applications must be assessed by balancing:
   • the importance of the subject matter in the case as a whole;
   • the justification for the delay;
   • the consequences of allowing the application; and
   • the consequences of refusing it.
3. The guidance in Claire Swain-Mason and Others v Mills and Reeve (a firm) [2011] EWCA Civ 14, although concerned with a late amendment, applied in principle to a late application to adduce expert evidence. The court should be less ready than formerly to allow a very late application, and a heavy onus lies on the applicant to justify it in relation to the parties and other litigants.
4. The Council had failed to comply with an earlier order requiring any application for expert evidence to be made by 29 April 2011. No satisfactory explanation was given for the further delay. Negotiations and pressure on resources did not justify non-compliance.
5. Allowing the application would either require an adjournment or leave the claimant at a serious evidential disadvantage. Refusal preserved the trial date desired by both parties and caused the Council little prejudice, particularly because the valuation evidence was peripheral and the prejudice resulted from the Council’s own default.

The necessary balancing exercise pointed decisively to refusal.