Christopher Oakes v British Engineering Services Ltd & Anor

Applications under Civil Procedure Rules Part 25 are governed by the overriding objective. The court may draw useful guidance from authorities concerning other late applications where the application threatens an established trial date.

A late application should be granted where the applicant shows a realistic prospect that the proposed step will produce material evidence on central issues, particularly where that evidence is unavailable by other means. The court must balance the applicant’s forensic prejudice against delay, inconvenience, procedural default, cost, prejudice to other parties and the interests of other court users. A heavy burden and the legitimate expectation that trial dates will be kept remain important, but they are not determinative.

The claimant brought a personal injury claim arising from the collapse of a lighting frame at the Channel Tunnel. The first defendant applied under Civil Procedure Rules Part 25 for permission to inspect and conduct non-destructive testing of a drill and torque limiter held by the Office of Rail and Road. The application was made shortly before the liability trial.

The experts agreed that the torque limiter had failed, but the cause of failure was unknown. The central questions included whether the equipment should have been inspected and what responsibility the parties bore for the accident. The application therefore required the court to determine the utility and forensic necessity of inspection, and whether permission should be granted despite the inevitable vacation of the trial date.

1. The court had a discretionary power to order inspection of property against a non-party under Civil Procedure Rules 25.1(1)(j) and 25.1(3). The discretion had to be exercised in accordance with the overriding objective in CPR 1.1.
2. Authorities concerning late amendments and other late applications supplied useful guidance. The relevant principles included wide but structured case-management discretion, procedural rigour, a heavy onus on the party seeking late relief, the legitimate expectation that trial dates would be kept, and assessment of the balance of prejudice. Those principles were applicable even though this was a Part 25 application.
3. The application was properly treated as seeking both inspection and non-destructive testing, together with vacation of the trial. Inspection and testing had forensic utility. The court was not required to determine in advance the precise evidential value of the exercise where the purpose of the exercise was to discover that value.
4. Inspection was forensically necessary. The cause of the torque limiter’s failure was relevant to contested issues of liability and responsibility, and the experts could not properly address it from photographs alone. The evidence had a realistic prospect of materially assisting the trial, even though it was unlikely to be determinative.
5. The court balanced the factors against permission, including avoidable delay, the loss of the trial fixture, inconvenience to the claimant, additional cost and the effect on other court users, against the risk that the first defendant would be unable to present potentially central evidence. The first defendant’s delay was significant, but it had repeatedly sought access from the regulator. The potential forensic prejudice substantially outweighed the prejudice caused by adjournment.
6. The regulator’s concerns did not justify refusing carefully limited permission. Non-destructive testing could be documented and the equipment retained. Investigators were not subject to an absolute prohibition on testing evidence before charge, provided relevant evidence was preserved and the process was transparent.
7. Permission was granted to inspect the equipment and to conduct testing only to the extent that it was non-destructive. The trial listed for 25 January 2023 was vacated. The parties were directed to provide a draft order and submissions on relisting and costs.