Dermot Joseph Doyle v HDI Global Speciality SE

Appeals against case-management decisions concerning the loss of essential expert evidence require the appellant to establish a legal misdirection, procedural unfairness or irregularity causing injustice, failure to consider relevant matters, or a decision outside the generous ambit of reasonable disagreement.

Where an expert relationship has broken down, the court must balance the blamelessness and prejudice suffered by the litigant against delay, wasted hearing time, lack of candour, unexplained default and the absence of a concrete solution. A claim may be dismissed where the claimant concedes, and the evidence demonstrates, that it has no real prospect of succeeding without its own expert and the opposing expert cannot realistically be relied upon to support it.

These were conjoined appeals by Mr Dermot Doyle and Mrs Eileen Rowe against case-management decisions in claims against HDI Global Specialty SE, the insurer of an installer of cavity wall insulation.

Both claims depended on expert evidence from ABC. Difficulties concerning his reports, instructions, payment and willingness to continue became known to the claimants’ solicitors months before trial. The lower courts refused adjournments and permission to substitute another expert. In Doyle, the claim was later dismissed by consent after it was accepted that it could not succeed without ABC’s oral evidence. In Rowe, the claim was dismissed after the court concluded that it was bound to fail without a replacement expert.

The central issues were whether the decisions involved serious procedural irregularity or injustice, whether further time should have been granted to obtain substitute expert evidence, and whether the claims could proceed without a positive case from the claimants’ own expert.

1. Appeals dismissed. The decisions below were within the permissible exercise of case-management discretion and were not rendered unjust by any procedural irregularity.
2. The email from ABC was not a request for directions under CPR 35.14. It stated that he would not continue as an expert and sought no directions. Although the court might have dealt with the communication differently, any failure to provide more time to respond caused no material prejudice. The later evidence did not show that the outcome would have been different.
3. The appellate test for a case-management decision is whether the judge misdirected himself in law, acted procedurally unfairly, took account of irrelevant matters, failed to consider relevant matters, or reached a decision outside the generous ambit within which reasonable decision-makers may disagree. The appellate court does not substitute its own assessment merely because it might have reached a different conclusion.
4. In Doyle, the lower court was entitled to treat the failure to prepare the joint expert statement as a serious and significant breach without a reasonable excuse. The court also properly considered the overriding objective, the lack of openness, the late application, the loss of a three-day fixture and the absence of reliable proposals for obtaining a new expert. The approach was substantively consistent with the Denton relief-from-sanctions framework and CPR 3.9.
5. In Rowe, the court was entitled to refuse permission to substitute an expert and to vacate the trial. It balanced Mrs Rowe’s blamelessness and the devastating consequence for her claim against the months of delay, lack of candour, unexplained failures, wasted judicial time and the absence of a particular replacement expert able to report within a reasonable period.
6. Once the claimants accepted that their cases depended on positive expert evidence, and that there was no realistic prospect of success without it, the courts were entitled to dismiss the claims. Cross-examination of HDI’s expert could not cure the absence of a positive expert case, and the written material of an unavailable or unreliable expert could not provide a proper substitute on these facts.
7. The court was not bound to follow the approach taken in Badar Din. Different judges may reach different discretionary conclusions on different evidence, and no general rule required the trial to be vacated whenever an innocent litigant was let down by an expert.

• High Court (King’s Bench Division) — Both appeals dismissed. The orders of HH Judge Carter and HH Judge Khan were upheld. In Rowe, permission to appeal was granted for the compelling reason that the rolled-up appeal had effectively been heard.
• County Court at Burnley / County Court — The lower courts refused applications to vacate the trials, stay the proceedings and obtain substitute expert evidence. The Doyle claim was subsequently dismissed by consent; the Rowe claim was dismissed by order of HH Judge Khan.