Odedra v Ball

Once the parties agree the appropriate starting value, a primary claim that a property lost an actual sale may be advanced without expert evidence on whether an unsold property has no value. That issue is one of law and fact. An alternative diminution-in-value claim, asserting that the property has no residual value, requires clear expert valuation evidence explaining the valuation and the basis for it.

There is no general rule that every document prepared by an expert must be disclosed, regardless of privilege. Under the CPR, disclosure may sometimes be required as a condition of permitting reliance on another expert, but the court must guard against injustice. Experts ordered to confer should ordinarily do so, even where the scope of their evidence is unclear.

The claimants alleged that heating oil had escaped from the defendants’ oil tank and contaminated their property. They claimed damages either for the loss of an agreed prospective sale at £402,500 or for diminution in value, asserting that contamination stigma left the property with no value.

The application concerned the scope and disclosure of expert valuation evidence. The claimants sought directions after the defendants’ expert failed to attend the court-ordered experts’ meeting. The defendants sought to prevent the claimants’ valuer from giving evidence unless another undisclosed report was produced. The central issues were whether expert evidence was required for either basis of loss, whether the additional report should be disclosed, and whether the experts should meet.

1. Expert evidence on the primary claim. The parties agreed that £402,500 was the appropriate starting point for assessing loss. No further expert evidence was required for the primary claim. Whether a property which cannot be sold has no value was a matter of law and fact, not expertise. The disclosed report did not materially assist that claim.
2. Expert evidence on the alternative claim. The alternative claim depended on establishing the property’s residual value. Since the pleaded case was that the residual value was nil, the claimants required expert evidence addressing whether the property was worth nothing, explaining why, or identifying and calculating any residual value.
3. Disclosure of the further report. The court considered Vasiliou v Hajigeorgiou [2005] 1 WLR 2195 and Edwards-Tubb v JD Wetherspoon PLC [2011] 1 WLR 1373. Those authorities showed that openness under the CPR may, in an appropriate case, justify requiring disclosure of a privileged expert report as a condition of relying on another expert. They did not establish a general rule requiring disclosure of every privileged document produced by an expert. The court declined to require disclosure here because the experts appeared to have been confused about the issues and disclosure might cause injustice. A further report addressing the alternative claim would nevertheless be required if that claim was maintained.
4. Experts’ meeting. The defendants’ expert was wrong not to attend the without-prejudice meeting required by the order and Civil Procedure Rules 1998, rule 35.12. Confusion about the scope of the evidence did not justify refusing to meet; the issues might have been resolved through the meeting.
5. Directions. The agreement on £402,500 was to be recorded in the joint statement under rule 35.12(3). The claimants were permitted to maintain both bases of claim, subject to serving an appropriate valuation report within 28 days. The experts were then expected to meet. Costs were provisionally treated as costs in the case.