Bulic v Harwoods & Ors

When parties have agreed to use a single joint expert, the court retains a broad discretion to permit a party to obtain and rely on evidence from another expert. The governing consideration is the overriding objective and overall justice between the parties. Guidance referring to a “good reason”, a “substantial case” or exceptional circumstances must not be treated as a rigid statutory test. The importance of the issue, the technical nature of the evidence, the parties’ legitimate concerns about the expert’s analysis or expertise, and the risk that the trial will become effectively trial by expert are relevant. Monetary value is not determinative. Where expert evidence concerns a central and potentially determinative issue, rather than a peripheral matter, permission to instruct a further expert may be required even in a modest-value claim.

The claimant appealed from a case-management decision of His Honour Judge Simpkiss in the Brighton County Court. The underlying claim concerned serious engine failure in the claimant’s Jaguar vehicle. The cause of the failure was disputed, with competing theories involving inadequate servicing, a design defect causing fuel dilution, and over-filling with engine oil.

The claimant had originally agreed to rely on a single joint expert. He later sought permission to rely on Dr Stinton’s evidence and for the single joint expert, Mr Cookson, to be disinstructed, alleging inadequate expertise and analysis and apparent bias. The county court refused the application. The appeal concerned whether that refusal involved an error of law or an improper exercise of discretion.

1. Appeal allowed. The appellate jurisdiction was one of review. The question was whether the county court judge was wrong in law, took account of irrelevant matters, failed to take account of relevant matters, or acted outside the ambit of reasonable disagreement in exercising his discretion.
2. The authorities on single joint experts did not establish a rigid or narrowly legalistic test. The references in Daniels v Walker [2000] 1 WLR 1382 to a substantial case and reasons which were not fanciful, and the reference in Peet v Mid-Kent Healthcare Trust [2002] 1 WLR 2010 to a good reason, were guidance expressed in broad terms. The court retained flexibility to assess what justice required on the facts of each case.
3. The overriding objective required attention to overall justice, including the balance of grievance between the parties. Relevant considerations included the centrality and technical nature of the issue, the likely assistance obtained from comparing expert opinions, and the saving of time and money. A single joint expert was less likely to be dispensed with where the issue was peripheral or the evidence non-technical.
4. The judge had become too focused on the “exceptionality” approach attributed to Kay v West Midlands Strategic Health Authority, without making sufficient allowance for the fact that the issue here was central to liability and technically complex. The concerns raised about Dr Stinton’s criticisms of Mr Cookson’s expertise and methodology warranted proper investigation at trial. Comparative assessment of the experts was more appropriately undertaken by the trial judge after hearing their evidence.
5. The apparent-bias ground was rejected. An expert in Jaguar engines was not reasonably perceived to be biased merely because he acted for both claimants and defendants, although notification of later instructions might have been preferable. The issue of claim value could not determine whether litigation was substantial, and no general monetary threshold existed.
6. Permission should therefore have been given for the claimant to rely on Dr Stinton’s evidence. The appeal was allowed on grounds one, three and four.

• High Court (Queen’s Bench Division): On appeal from the Brighton County Court, the High Court allowed the appeal against the case-management decision dated 13 June 2012.
• Brighton County Court: His Honour Judge Simpkiss refused permission for the claimant to rely on his own expert evidence and to disinstruct the single joint expert.