Hinson v Hare Realizations Ltd (2)

Applications to replace a single joint expert with an independently instructed expert are governed by a broad, fact-sensitive discretion. A party’s good reason for losing confidence in the joint expert, and the technical or central nature of the evidence, do not create an automatic entitlement to adduce new evidence or adjourn the trial.

The court must assess the overall justice between the parties and apply the overriding objective. Relevant considerations include delay, previous adjournments, proportionality, increased costs, disruption to the trial fixture and the effect on court resources. The value of the claim is relevant but not conclusive. An appellate court should intervene in the first-instance exercise of discretion only for an error of law, a wrong test, consideration of irrelevant matters, failure to consider relevant matters, or a decision outside the generous ambit of reasonable judgment.

The claimant appealed against the refusal of Miss Recorder McNeill QC to adjourn a fast-track noise-induced hearing-loss trial and permit reliance on a new acoustic engineering report in place of the single joint expert’s report. The application was made three days before trial, after two earlier trial dates had been vacated. The Recorder accepted that the joint expert’s evidence was technical and central, and that the claimant had a genuine and good reason for losing confidence in it, but refused the application after balancing those matters against lateness, prior adjournments, increased costs, the low value of the claim and disruption to the trial fixture.

The central issue was whether the Recorder had misdirected herself or exceeded the proper limits of her discretion.

1. Appeal dismissed. The Recorder’s refusal to adjourn the trial and permit reliance on the alternative expert report was upheld.
2. The appellate hurdle was significant. The court would intervene only if the Recorder had misdirected herself in law, applied the wrong test, taken account of irrelevant matters, failed to consider relevant matters, or reached a decision outside the generous ambit of reasonable discretion.
3. The correct approach to abandoning a single joint expert and adducing independent expert evidence was that stated by Eady J in Bulic v Harwoods [2012] EWHC 3657 (QB), drawing on Daniels v Walker [2000] 1 WLR 1382. A party may seek further expert evidence for a non-fanciful reason, but the application remains subject to the court’s discretion. The authorities impose no straitjacket.
4. The court must consider the overriding objective and the overall justice between the parties. This includes the balance of grievance, proportionality, expedition, cost, inconvenience to other parties and the proper allocation of court resources. The fact that the expert evidence is technical and central, and that confidence in the joint expert has been genuinely and reasonably lost, is important but not decisive.
5. The Recorder was entitled to weigh those matters against the application’s lateness, the fact that the case had already been adjourned twice, the claimant’s prior opportunity to question the joint expert, the proposed conversion from a low-value fast-track claim to a costly two-day multi-track trial, and the waste of the trial fixture. She did not give undue weight to any single factor or apply an erroneous test.

• High Court (Queen's Bench Division): appeal from the Walsall County Court order of Miss Recorder McNeill QC dated 27 February 2020 dismissed.
• Walsall County Court: application to adjourn the trial and rely on alternative expert evidence refused; the claim was subsequently dismissed on its merits.