Davies v Ford & Ors

Expert evidence is admissible only where it concerns a recognised expertise relevant to an issue arising on the statements of case and the proposed expert has sufficient knowledge and experience to assist the court.

Under Civil Procedure Rules 1998, CPR 35.1, the court must restrict expert evidence to what is reasonably required to resolve the proceedings. The court should distinguish evidence that is necessary from evidence that is merely helpful, and must assess proportionality, including cost and marginal relevance. Technical industry experience will not suffice where the issues are principally factual, legal or accountancy-related.

The claimant, as assignee of Green Box Recycling Ltd’s causes of action, obtained judgment against former directors and a successor company following the diversion of the company’s business. The quantum issues included whether the original company could and would have continued trading, and what profits it would have made.

At a case management conference, the second defendant sought permission to adduce evidence from a waste management consultant on regulatory feasibility, trading duration and projected profits. The central question was whether that evidence was admissible and reasonably required for the quantum trial.

1. Application refused. The proposed evidence did not satisfy the requirements governing expert evidence.
2. The proposed issues arose on the statements of case. The defendants’ case was that the company could not have traded because of regulatory and financial obstacles, and therefore would have made no profits. However, the pleaded case did not require quantification of hypothetical profits.
3. Under CPR 35.1, the court first considered whether the evidence concerned issues arising in the proceedings. It then considered admissibility: whether there was a recognised expertise governed by recognised standards and rules of conduct, and whether the proposed expert had sufficient relevant knowledge. The court also applied the three-stage approach identified in British Airways Plc v Spencer [2015] EWHC 2477 (Ch): whether evidence was necessary, whether it would assist the court, and whether it was reasonably required in the proceedings as a whole.
4. The proposed expert had substantial technical experience in waste management, but the issues were not technical. The regulatory requirements were matters of environmental law or fact. The financial issues did not require waste-management expertise, and any profit calculation required accountancy expertise.
5. Even if the evidence were potentially helpful, it was not necessary. The likely additional cost was approximately £100,000, including legal costs, for evidence concerning at most a marginal part of the case. That cost was disproportionate in the context of the existing expert evidence and the proceedings as a whole.