Boyle v Commissioner of Police for the Metropolis

A court may refuse late expert evidence where it was required by an earlier order and the report, as served, does not assist determination of a live issue. An application to call such evidence is effectively an application for relief from the sanction of non-service, requiring consideration of the applicable Civil Procedure Rules provision.

In a split trial, causation relevant to liability must be addressed at the liability hearing. Experts should exchange proper written reports before trial and meet only after that exchange. Persistent non-compliance may justify dismissal, even where the claimant has suffered catastrophic injury. Prejudice to the administration of justice and waiting litigants is relevant, not merely prejudice to the parties.

The claimant suffered catastrophic spinal injury after being struck by a car driven by a police officer. At trial, Turner J found the driver negligent for exceeding a safe speed, but rejected allegations concerning road position and evasive action. He also refused a late application to rely on a spinal-injury expert report, finding it too late and unhelpful on whether a lower impact speed would have reduced the injury.

The claimant appealed, alleging misunderstanding of the accident evidence, conflation of lateness and utility, and error in refusing to defer causation until quantum. The appeal concerned the proper treatment of late expert evidence and the effect of the split-trial order.

Decision

1. Appeal dismissed. Lord Justice Longmore held that the trial judge had correctly understood the expert evidence concerning whether the driver could have braked and swerved. The finding that avoidance would have required a substantially lower speed was supported by the evidence and could not be faulted. Lady Justice Black agreed.
2. The application to serve the expert report shortly before trial was effectively an application for relief from the sanction of failing to serve expert evidence in accordance with an order. The judge had a discretion and had considered the matters required by the then-current Civil Procedure Rules 3.9. There was no explanation for the failure to serve the evidence earlier, despite an invitation from the defendant’s solicitors.
3. The judge was also entitled to consider the utility of the report. A report which does not assist the court on the issue in question should not be admitted. Proper deployment of expert evidence required written reports before trial, followed by a meeting between the experts only after those reports had been exchanged. Oral expansion of the report or a meeting during the trial would not cure the defect.
4. The existing order required liability to be determined before quantum, with permission for spinal-surgery expert evidence. Causation therefore had to be addressed at the liability hearing. A hearing confined to breach and safe speed would have contravened the order and proceeded without the court knowing the consequences of its findings. Deferring causation was not a proper course so late in the proceedings.
5. Compliance with court orders affects the administration of justice as well as the parties. The court relied on Baron v Lovell [2000] PIQR 20, and referred to Fred Perry Holdings Ltd v Brands Trading Plaza Ltd [2012] EWCA Civ 224 and Mannion v Ginty [2012] EWCA Civ 1667. Persistent failure to comply may lead to dismissal, notwithstanding catastrophic injury. The refusal of permission was properly reached, and the appeal was dismissed.

1. Court of Appeal (Civil Division) dismissed the appeal from the decision of Turner J.
2. High Court of Justice, Queen’s Bench Division found the driver negligent for exceeding a safe speed and refused permission to rely on the late expert report.