N v Camel

Permission to rely on expert evidence may be refused where the underlying claim has no real prospect of success, applying the decision-making approach associated with CPR Part 35. Such cases are comparatively rare. The court should be cautious where the evidence is disputed, has not been tested, or depends on oral evidence and credibility. An appellate court should not treat a decision as an ordinary discretionary case-management ruling where the first-instance judge has effectively applied a CPR Part 24 summary judgment test. In that situation, the appellate court may correct an erroneous legal approach. Expert evidence was reasonably required for an accommodation claim even though the claimant’s evidence had significant weaknesses.

The claimant brought a personal injury claim arising from a road traffic accident. Liability was admitted, but the extent and causation of her alleged disability, together with her pre-accident condition and likely future needs, were sharply disputed.

At a case management conference, Master Leslie refused permission to rely on architectural expert evidence relevant to claims for accommodation, adaptation and running costs. He considered that the accommodation needs might have arisen from the claimant’s pre-existing condition. The claimant appealed, contending that the expert evidence was reasonably required and that the claim could not fairly be determined at that stage.

1. Appeal allowed. The Master’s refusal of permission to rely on architectural expert evidence was set aside.
2. The usual restraint applicable to appeals from case-management decisions did not determine this appeal. Such decisions ordinarily involve discretion, and an appellate court should intervene only where the decision is plainly wrong. Here, however, the Master had effectively applied a CPR Part 24 summary judgment test, or an uncertain and weaker variant of it. That involved evaluating the evidence rather than exercising a case-management discretion.
3. Under the decision-making approach associated with CPR Part 35, expert evidence may exceptionally be refused where the underlying claim has no real prospect of success and is therefore not reasonably required. Such cases are comparatively rare. The approach is especially inappropriate where the issues depend on disputed oral evidence, expert opinion, and assessment of the claimant’s credibility and reliability before the evidence has been tested at trial.
4. The Master’s reasons were unsatisfactory because they vacillated between a conclusion that the accommodation claim had no real prospect of success and tentative possibilities that the claimant’s needs might have arisen in any event. Even allowing latitude in assessing the evidence, the accommodation claim was not so weak that it should be closed out at an interlocutory stage.
5. The accommodation claim was analytically different from the earnings claim. The claimant could advance her loss of earnings without an employment expert, but the accommodation claim required expert evidence, including in the alternative case that the alleged losses would not continue throughout her life. The claim therefore required determination at trial rather than summary exclusion of the evidence.

• High Court (Queen’s Bench Division): Master Leslie refused permission at a case management conference to rely on architectural expert evidence.
• High Court (Queen’s Bench Division): On appeal, Mr Justice Jay allowed the appeal and held that the expert evidence was reasonably required.