Onzm & Anor v Watson & Ors

Expert evidence may be permitted where it is necessary to resolve an issue or would assist the court, provided that its use is reasonably required and proportionate to the proceedings. Where permission has already been granted, the court should be slow to revoke it unless confident that the evidence will provide no significant assistance. The court may consider the likely costs and the practical benefit of allowing evidence on additional valuation dates, particularly where the same experts are already instructed. Evidence admitted in one set of proceedings heard together will generally be available for the other proceedings, although its relevance and any resulting costs may be considered when costs are ordered.

The judgment determined an outstanding case-management issue in related Chancery proceedings. Permission had previously been granted for a single expert to address the value of certain property investment rights and transactions at specified dates. The Kea parties sought removal of the April 2013 valuation date. Novatrust opposed that application and sought permission to rely on valuations at April and October 2013 in its related proceedings. The central questions were whether the evidence was necessary or useful, whether it was proportionate, and how far it should be available across proceedings heard together.

1. Applicable principles. Expert evidence should be permitted where it is necessary to resolve an issue or is likely to assist the court, subject to a proportionality assessment as to whether it is reasonably required for the proceedings. The court adopted the approach discussed in British Airways plc v Spencer [2015] EWHC 2477 (Ch).
2. April 2013 valuation. The court was not confident that evidence of the value of the Schedule 2 Transactions in April 2013 would be of no significant assistance to the affirmation and misrepresentation issues. The evidence might assist in assessing whether the alleged representations were made. Since the same experts were already to give evidence concerning July 2012, extending their evidence to April 2013 would involve limited additional cost and was not disproportionate.
3. Novatrust proceedings. Actual value was not directly relevant to whether Harlaw acted bona fide in Spartan’s interests. The relevant question was whether a director possessing the information available to Harlaw would have appreciated that the transaction’s value greatly exceeded its price. Nevertheless, because the April valuation evidence would be before the court and the actions would be heard together, it could be relied on in the Novatrust proceedings as well.
4. October 2013 valuation. Although the judge remained sceptical about its usefulness, the additional cost of updating the evidence from April to October was likely to be limited, and the evidence might assist at trial. Permission was therefore extended to October 2013. If the evidence proved useless, Novatrust could expect to bear the additional costs.

The Kea parties’ application to revoke the April permission was refused, and Novatrust’s application to extend the expert evidence was granted.

The judgment records that permission for expert evidence had been granted at an earlier case-management conference by an order dated 28 April 2016. This judgment determined the subsequent application to revoke and extend that permission.