Weatherford Global v Hydropath

Where a court has established a timetable and procedure for experimental evidence, a party cannot ordinarily introduce late experiments or test results shortly before trial, particularly where the opposing party would need an opportunity to repeat or challenge them. An unexplained breach causing substantial prejudice justifies refusing permission to rely on the material as experimental evidence. However, a document already pleaded may still be included in the trial bundle and considered for its limited evidential value. Experts may comment on it, but its weight may be reduced substantially where the testing was not subject to the ordered process of liaison, challenge and repetition.

Weatherford Global claimed that equipment supplied by Hydropath was unsafe and breached the parties’ supply agreement because it could produce sparks. Hydropath sought to rely on an Intertek report concerning spark testing carried out in 2013. The report had been known to Hydropath for many months and had been referred to in its pleadings, but it was not brought within the court-ordered experimental evidence regime until April 2014, shortly before the trial fixed for June 2014.

The application concerned whether Hydropath should be permitted to rely on the report as experimental evidence, in circumstances where Weatherford sought an opportunity to repeat or vary the tests.

1. The application to rely on the Intertek report as experimental evidence was dismissed. The court-ordered procedure had operated for more than a year and required timely notice of proposed experiments, with opportunity for expert liaison and, where necessary, further directions.

2. The notice served on 17 April 2014 was plainly late and did not comply with the relevant order. Hydropath had known of the report for many months, had commissioned it, knew its results and had pleaded reliance on it. No satisfactory explanation was given for failing to notify reliance on the report earlier.

3. Weatherford’s request for an opportunity to repeat or vary the testing was understandable. With fewer than four working weeks before trial, including the Whitsun vacation, there was insufficient time to carry out a properly organised repeat exercise. Allowing the late procedure would cause significant prejudice.

4. The report was not excluded altogether. Because it was already pleaded, it was to be included in the trial bundle and experts could comment on it. Its evidential weight might be limited because the testing had not been capable of challenge or repetition through sensible expert liaison.

5. The report could have, at most, extremely limited admissibility as part of the factual story, described by analogy as part of the res gestae. The report stated what the tests showed, but its reliability could not thereby be established.

The application was dismissed.

Not stated in the judgment.