Tully v Exterion Media (UK) Ltd & Anor

Where expert evidence is permitted for a defined purpose and subject to a deadline, a party cannot unilaterally enlarge that permission after the deadline has expired. Surveillance evidence ordinarily follows the parties’ exchange of their factual and expert cases. The affected party should have a fair opportunity to explain the footage and obtain expert comment limited to issues arising from it. A broader re-examination or updating report requires further permission from the court. An expert’s duty to assist the court does not authorise a solicitor to expand the scope of a case-management order. The court must preserve equality of arms, simultaneous exchange and control over the amount and timing of expert evidence. A report exceeding the permitted scope is a serious breach, although the court may consider limited relief where separable material can fairly be retained.

The claimant brought a personal injury claim against Exterion Media (UK) Ltd and London Underground Ltd. Directions permitted orthopaedic and psychiatric expert evidence, including an updated orthopaedic report, with a deadline for exchange. The claimant deliberately chose not to obtain that substantive update.

After the parties had exchanged witness statements and reports, the defendants served covert surveillance footage. By consent, the claimant was permitted to serve an explanatory witness statement and further expert reports limited to issues arising from the footage and that statement. The claimant’s orthopaedic expert instead re-examined him, considered the defendants’ report and produced a general updating report. That report was then provided to the claimant’s psychiatric expert.

The issues were whether the order had been breached, whether relief from sanctions should be granted, and whether the reports could be relied upon.

1. Breach. The claimant breached the order. The original permission for a substantive orthopaedic update had lapsed when the deadline passed and the claimant deliberately chose not to use it. The later permission was limited to issues arising from the surveillance footage and the claimant’s explanatory statement. The orthopaedic report went beyond that limit, and the psychiatric report was also affected because it was based on impermissible instructions.
2. Proper procedure. Once surveillance was served, the claimant was entitled to respond through an explanatory statement and expert comment on the issues raised. If a substantive update was still required, the proper course was to return to the court and seek permission, before telling the expert about the surveillance. If permission were granted, the substantive update should precede a later report addressing the surveillance, preserving simultaneous exchange and a fair comparison with the defendant’s evidence.
3. Expert’s duty. The duty under Civil Procedure Rules 1998 to assist the court did not permit the claimant’s solicitor to enlarge the court’s order merely because the expert considered further examination necessary. The expert could seek directions from the court under CPR 35.16(1).
4. Relief. Applying the approach in Mitchell and Denton, the breach was neither trivial nor immaterial. It caused substantial procedural unfairness, achieved sequential service and delayed the trial timetable. There was no good reason for proceeding without permission. Relief in the fullest sense was refused, but the court was prepared to consider limited relief for separable surveillance-related material or a replacement psychiatric expert without knowledge of the surveillance.