Clarke v Barclays Bank Plc & Anor

On an appeal from a case-management decision, the appellate court may interfere only for an error of law or principle, failure to consider relevant matters, reliance on irrelevant matters, or a decision outside the generous ambit of reasonable disagreement. A party who learns that its expert cannot continue must notify the court and the other parties within a reasonable period and apply promptly for directions. Deliberate concealment to preserve a settlement advantage may amount to serious abuse of the court’s process. In deciding whether to admit replacement expert evidence, the court must balance the prejudice to the applicant against prejudice to other parties, trial disruption and the need to enforce procedural discipline.

The claimant sued Barclays Bank Plc after the mortgaged property was sold at an alleged gross undervalue. Barclays joined Lamberts Surveyors Ltd as a third party. The claimant’s expert, Mr Dall, withdrew after retiring, but the claimant did not disclose that fact while seeking a replacement expert and pursuing mediation. Deputy Master Arkush permitted reliance on a replacement report by Mr Yates, subject to removal of material based on another report. Barclays and Lamberts appealed that interlocutory case-management order. The central issue was whether the claimant should be permitted to rely on the replacement expert evidence shortly before trial.

1. Appeal allowed. The court exercised its appellate jurisdiction over a discretionary case-management decision. Applying Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743, interference was justified because the Deputy Master had made errors of law and principle.
2. The claimant’s expert evidence was central to liability and quantum. Once Mr Dall’s withdrawal was known and a replacement was required, the claimant should promptly have disclosed the difficulty to the court and the other parties and sought directions under Practice Direction 23A paragraph 2.7. There was no proper basis for waiting until a replacement report had been obtained.
3. The prolonged withholding of the information, undertaken while the claimant sought to mediate on a premise known to be false, was a serious abuse of the court’s process. It gave the claimant a forensic advantage because the replacement expert could consider the opposing experts’ reports. Admission of the new report would cause serious prejudice to Barclays and Lamberts and require the trial to be adjourned.
4. The court adopted the relevant guidance from Mitchell [2013] EWCA Civ 1537, as explained in AEI v Alstom [2014] EWHC 430 (Comm). Procedural discipline must be enforced, but the court should remain a tough yet proportionate and sensible disciplinarian. The reasoning criticised in Raayan al Iraq [2013] EWHC 2969 (Comm) was not accepted, although that decision was regarded as rightly decided on its facts.
5. The replacement expert evidence was excluded. The claimant could nevertheless rely on Mr Dall’s existing report as evidence, without requiring him to attend or participate in the experts’ discussions, leaving its weight to the trial judge. The application by Barclays to strike out the claim was refused.

• High Court (Chancery Division): Appeal allowed against the interlocutory order of Deputy Master Arkush dated 12 February 2014. Permission to rely on further expert evidence was refused, but the claim was not struck out.