Blue Power Group SARL & Ors v VAR Energi AS & Ors

Expert evidence should be admitted where it is necessary to resolve a pleaded issue. Where it is not necessary, the court should ask whether it would assist in resolving that issue and, if so, whether it is reasonably required in the context of the proceedings as a whole.

The assessment begins with the pleadings. Specialist evidence may assist on both the content of a best endeavours duty and causation where the objective characteristics and comparative merits of competing technical solutions are in issue. A party’s own contemporaneous view of a technology does not, by itself, make expert evidence unnecessary.

The claimants alleged that the defendants breached an obligation to use their best endeavours to persuade Statoil, their partner in the Goliat oilfield, to consent to the use of the claimants’ compressed natural gas technology.

The defendants sought permission to adduce expert evidence concerning CNG technology and offshore oil and project management. The application concerned whether the pleaded issues, including the content of the best endeavours duty and causation, justified expert evidence. An earlier order had permitted such evidence, and the defendants sought to maintain that position.

1. The defendants were permitted to adduce expert evidence in the combined fields of CNG technology and offshore oil and project management. The order was made broadly in the proposed terms, subject to clarification of the evidence concerning comparative commercial benefits.
2. The applicable approach was that stated in British Airways v Spencer [2015] EWHC 2477 (Ch) at para 68. The court must consider each pleaded issue and ask: first, whether expert evidence is necessary; secondly, if not necessary, whether it would assist in resolving the issue; and thirdly, whether, having regard to the proceedings as a whole, it is reasonably required. The approach operates subject to any exclusion under CPR 3.1(2)(k).
3. The pleadings placed in issue the maturity of the technology, uncertainties concerning gas containment, anticipated delay, certification, costs, timing and the comparative merits of alternative solutions. Those questions involved specialist knowledge and would otherwise leave the court dependent on the views of interested parties. Expert evidence would therefore at least assist in resolving them.
4. Although the objective merits of the technology would not determine whether Statoil would have consented, they were relevant to that question. If Statoil’s concerns were objectively justified, further persuasion would be less likely to succeed and a reasonable person might not have taken additional steps. If the concerns were unfounded, that could indicate both what steps a reasonable person would have taken and whether those steps might have changed Statoil’s position.
5. There was consequently a close connection between the content of the best endeavours duty and causation. The court relied in this respect on the observation in Minerva (Wandsworth) Ltd v Greenland Ram (London Ltd) [2017] EWHC 1457 (Ch) at para 255 that, in assessing reasonable steps, the court must also consider whether they would have succeeded.
6. The defendants’ earlier enthusiasm for the technology did not make expert evidence unnecessary. The critical question concerned Statoil’s position, and the interests of Statoil and the defendants might have diverged.