Polypipe Limited v Peter Russell Davidson

A factual witness who possesses relevant expertise may give factual evidence and express opinions reasonably related to facts within the witness’s knowledge or experience. Such evidence is not independent expert evidence and must be assessed for its weight accordingly. The boundary between permissible factual opinion and impermissible expert evidence is one of fact and degree.

The court has a broad and proportionate discretion when dealing with non-compliant witness evidence. Striking out an entire witness statement is a nuclear remedy and will rarely be justified. An order requiring disclosure of an earlier expert’s report must rest on an identified jurisdictional power, such as a condition attached to an extension of time for expert evidence. The existence of such power does not require its exercise where expert shopping is not established.

Polypipe Limited brought warranty claims exceeding £1.7 million against Peter Russell Davidson arising from the sale of shares in the Alderburgh Group. The defendant challenged a witness statement made by Steven Wilson, arguing that it was a disguised expert report and should be struck out. He also sought disclosure of draft reports and other material relating to Wilson’s earlier proposed role as the claimant’s expert.

The applications arose alongside a further claim concerning additional tank failures. The court also considered the case-management consequences, including whether the proceedings should be managed and tried together. The central issues were whether Wilson’s evidence was admissible as factual evidence containing permissible opinion, and whether the court had jurisdiction, and should exercise its discretion, to order disclosure of his earlier expert material.

1. Witness statement. The application to strike out Wilson’s witness statement was refused. The statement contained factual evidence, permissible opinions on facts of which Wilson had direct or hearsay knowledge, and commentary within his expertise. His status as an expert did not prevent him from giving evidence as a witness of fact.
2. The court distinguished the circumstances from JD Wetherspoon Plc v Harris, where the witness lacked relevant expertise and commented on matters outside his direct knowledge. The principles in Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd were applied. A technical witness may express opinions reasonably related to facts within the witness’s knowledge and relevant comments based on personal experience, but must not trespass into independent expert evidence. The question is one of fact and degree.
3. Any opinion evidence in a factual witness statement does not acquire the status of formal expert evidence under CPR 35.4. Its weight is for the trial judge. The court preferred the approach in MAD Atelier International BV v Manes and held that the evidence should not be struck out merely because factual matters and expert-informed commentary were intertwined.
4. Disclosure of earlier expert material. The court held that an appropriate jurisdictional vehicle existed. The claimant required an extension of time for expert evidence, and the court could make disclosure of earlier expert material a condition of granting that extension. The parties could not themselves extend time in a manner that imperilled the trial date, having regard to CPR 29.5.
5. Nevertheless, the disclosure application was refused. The court was unpersuaded that Wilson had been replaced because the claimant feared his evidence. The explanation that the claimant wished to use a more remote and apparently independent expert was accepted. Wilson remained a witness who could be cross-examined about any change in his views. The application was characterised as a fishing expedition.
6. The existing trial date was vacated so that the two related proceedings could be managed and tried together, subject to revised directions.

First-instance applications in the Circuit Commercial Court. The proceedings had previously been transferred from the Commercial Court in London to Manchester by order of Cockerill J.