UPL Europe Ltd & Anor v Agchemaccess Chemicals Ltd & Ors

Parties permitted to rely on expert evidence must co-operate in defining its scope and methodology before reports are exchanged. This is particularly important where scientific analysis is involved. The court should consider directing such engagement when granting permission for expert evidence. The discussion may take place between lawyers, experts, or both, depending on the issues. A party’s failure to engage may breach its duty under the Civil Procedure Rules 1998 and may justify an adverse costs order. Costs may nevertheless be reduced where the successful application sought relief that was not pursued at the hearing.

The claimants applied for permission to rely on chemical expert evidence to be revoked or, alternatively, for clarification of the defendants’ proposed evidence and sequential exchange. The application concerned expert evidence about the chemical identity of plant protection products regulated under Regulation (EC) 1107/2009.

At the hearing, the claimants did not pursue the principal relief. The court instead directed the parties to discuss the scope and methodology of the evidence, meet with their experts, and prepare a joint statement. The issue was the appropriate order for the application’s costs.

1. The application was necessary because the first and third defendants had failed to respond to repeated requests to engage about their expert evidence. The claimants were therefore entitled to an order for costs in their favour.

2. Where expert evidence is permitted by exchange of reports, the parties should ordinarily discuss the scope of the issues before exchange. Where scientific analysis is required, they should seek to agree what is to be analysed and by what method, unless the approach is established and unlikely to be contentious. The purpose is to ensure that the reports are properly matched, focused and confined to the core issues.

3. The discussion may be conducted between the lawyers, the experts, or both. The court should consider directing such a discussion when granting permission for expert evidence. In straightforward cases, a face-to-face meeting may not be necessary.

4. The first and third defendants’ failure to engage was unacceptable and breached their duty under rule 1.3 of the Civil Procedure Rules 1998. Their conduct could be taken into account under rule 44.2(4) when determining costs.

5. The claimants had not pursued the primary relief of revoking permission for expert evidence. A modest reduction was therefore appropriate to reflect that repositioning, although the alternative relief substantially corresponded with the order made.

6. The first and third defendants were ordered to pay 85% of the claimants’ costs of the application on the standard basis. The costs were summarily assessed at £17,425, of which £14,821.25 was payable.