Mayr & Ors v CMS Cameron McKenna Nabarro Olswang LLP

Experts permitted to give evidence must engage constructively in a properly conducted joint meeting and produce an agreed memorandum identifying areas of agreement and disagreement. Supplemental reports are ordinarily confined to the issues remaining after that process. Repeated failure to comply may result in permission to rely on the evidence being withdrawn or made conditional on relief from sanctions. A party cannot rely on the absence of an unless order as a licence to disregard procedural rules.

For disclosure, documents belonging to a litigant remain within its control even if physically held by an associated entity. Where foreign-law restrictions are relied upon, proper particulars and evidence are required. Relevant documents may be ordered to be reviewed and disclosed, with redaction of irrelevant material concerning third parties where appropriate.

The judgment arose during a pre-trial review in two substantial commercial claims against the defendant law firm. The court considered the parties’ compliance with directions governing expert evidence concerning the Turkish pharmaceutical industry. The claimants’ expert had twice failed to engage meaningfully with the opposing expert and had instead deferred his responses to a later supplemental report.

The court also reconsidered disclosure by Spokane Investments Limited. Documents relating to Spokane had been copied from a hard drive controlled by an associated Swiss company, but documents containing information concerning other clients had been deleted before review. The central procedural issues were whether permission to rely on the Turkish expert evidence should continue and what further disclosure order should be made.

1. Expert evidence. The court expects independent experts to discuss their reports constructively, reach agreement where possible, and record concise reasons for any disagreement in a joint memorandum. Supplemental reports should address the narrowed issues remaining after that meeting; they are not a substitute for the meeting itself.
2. The Turkish experts’ meeting had not complied with that requirement. The claimants therefore failed to comply with the terms on which permission to adduce the evidence had been granted. The burden was on them to propose a workable procedure and, if necessary, to seek relief from sanctions. The default of the expert did not remove the claimants’ responsibility, particularly because the same approach had previously been adopted in relation to the LMM issue.
3. The court initially ruled that permission to adduce the Turkish pharmaceutical evidence was unavailable. On reconsideration, that ruling was maintained in substance, but the parties agreed a conditional procedure: the claimants’ expert had to serve a supplemental report, the experts had to hold a further without-prejudice meeting and produce a joint statement, and the defendant’s expert had to be given time to respond. The court retained power to determine whether compliance had occurred in time to preserve a fair trial.
4. Disclosure. On the evidence, documents in the Spokane folders were Spokane’s documents. Their physical custody by HNW Family Office Limited did not deprive Spokane of control. The asserted Swiss-law restriction was insufficiently particularised. The court did not require disclosure of HNW documents, but ordered the HNW hard drive to be searched so that the deleted upload folder could be reconstituted.
5. Relevant documents were to be reviewed and disclosed, subject to privilege. Redaction was permitted for irrelevant material concerning other clients. If reviewing the whole reconstituted folder proved impracticable, the agreed search terms could be used to narrow the review.
6. The pre-trial review costs were costs in the case.

First-instance procedural ruling. No appellate history is stated in the judgment.