Allen v Cornwall Council

Permission to adduce expert evidence is a provisional case-management decision. Under CPR 35.1, evidence must be reasonably required to resolve the proceedings, but an appellate court should not substitute its own view where the first-instance judge applied the correct principles and acted within the generous ambit of discretion.

Expert evidence must not usurp the court’s role in deciding negligence or contributory negligence. Nevertheless, evidence concerning a specialised activity may be permitted where it could assist with issues that are not merely factual or obvious. Permission may be granted in stages, with responsive evidence considered after the opposing party has reviewed the report.

The claimant, a cyclist, brought proceedings against the highway authority after suffering severe injuries when his bicycle contacted an encroaching verge on a steep road. The claim alleged breach of statutory duty, nuisance and negligence. The defendant pleaded contributory negligence, including excessive speed, failure to adjust speed or dismount in poor visibility, and cycling too close to the carriageway edge.

At a case-management conference, District Judge Khan permitted the claimant to rely on expert evidence concerning cycling skills and safety. The defendant sought permission to appeal, arguing that the evidence was unnecessary and inadmissible, that the report should first have been produced, and that refusing immediate permission for responsive evidence created inequality of arms. The central issue was whether the judge had acted outside his case-management discretion.

1. Outcome. The application for permission to appeal was refused. The judge stated that, had permission been granted, he would have dealt with the substantive appeal in the same way.
2. Expert evidence. The governing principle was that expert evidence must be restricted to evidence reasonably required to resolve the proceedings under CPR 35.1. The cautions in Liddel v Middleton [1996] PIQR P36 remained applicable: experts must assist with matters outside ordinary knowledge and must not decide factual issues, draw conclusions that belong to the trial judge, or express opinions on whether conduct amounted to negligence.
3. The district judge’s decision was only a threshold ruling made before the report had been tested at trial. It did not bind the trial judge, who could reject the evidence as irrelevant, unhelpful or not genuinely expert, and could impose an appropriate costs sanction.
4. The district judge was entitled to consider that cycling safety in the unusual circumstances pleaded might assist the court, particularly because the Highway Code did not specify where a cyclist should ride or whether dismounting was required in those circumstances. The question on appeal was not whether the appellate judge would have made the same decision, but whether the decision fell outside the legitimate range of discretion.
5. The judge was also entitled to adopt a staged approach. After seeing the claimant’s report, the defendant could abandon the contributory-negligence allegations or apply for permission to adduce responsive expert evidence. That approach was not unfair and did not create a realistic inequality of arms.
6. Although it would have been preferable for the report, or at least a summary of its proposed scope and instructions, to have been available, the failure to require it before granting permission was not an error of principle. The costs of the application were reserved to the trial judge.

• High Court (Queen’s Bench Division): District Judge Khan’s order of 28 January 2015 permitting the claimant to adduce cycling-safety expert evidence was upheld; permission to appeal was refused.