Baynton-Williams v Baynton-Williams

Where evidence is filed late or served improperly without an express sanction, the court retains discretion to admit it. The principles applicable to relief from sanctions guide that discretion, including the seriousness of the breach, any explanation, and all the circumstances. A litigant in person is generally subject to the same principles as a represented party, but the opposing party’s ready access to evidence filed at court and misleading advice about the procedural position may justify admission. An expert must assist the court independently, consider material new information, and value property on stated assumptions rather than determine disputed facts. Where existing expert evidence was materially based on incomplete information, a supplemental report may be proportionate to a new expert’s report.

The claimant sought the defendant’s removal as administrator of their late mother’s estate and an account for the defendant’s rent-free occupation of the deceased’s property. The court had previously removed the defendant as administrator and directed an account of the occupation.

The defendant filed evidence late and did not serve it. The claimant opposed its admission and relied on the absence of a formal application for relief from sanctions. The defendant’s evidence raised substantial factual issues about the property’s condition, which affected the rental valuation. The central questions were whether the evidence should be admitted and how the expert evidence should be addressed.

1. Late evidence. There was no express sanction in the order and the rules relied upon did not apply. CPR 3.9 therefore did not directly apply, but admitting the evidence was equivalent to extending time for service, so the relief-from-sanctions principles were relevant.
2. The breach was serious and unexplained, and the fact that the defendant acted in person did not ordinarily justify special treatment. However, the evidence had been filed and was readily obtainable from the court file. The claimant’s solicitors had asserted an absolute bar on reliance upon it, when a short extension would have been available. Those circumstances justified admitting the defendant’s statements, subject to formal verification by statements of truth.
3. The defendant’s email to the expert complied with the order insofar as it asked questions and set out the relevant evidence. It was hearsay, but so was evidence relied upon by the expert concerning the property’s condition. The email raised a real factual issue which could not properly be resolved without evidence from persons with direct knowledge and relevant disclosure.
4. Expert evidence. Under CPR 35.3, an expert’s overriding duty is to assist the court. The expert must remain independent, state assumptions, identify inadequate information, reconsider an opinion when new material is received, and communicate any material change of view. The expert wrongly treated the defendant’s information as something he should disregard and wrongly assumed a role in determining the factual dispute.
5. The claimant’s proposed concession and revised valuation would not resolve the factual issues. The defendant’s evidence was admitted, the claimant was given an opportunity to respond, and the expert was directed to produce a further valuation based on the defendant’s asserted condition of the property. A new expert was not directed because its cost would have been disproportionate.