Declan Colgan Music Limited v UMG Recordings, Inc.

Expert evidence may include skilled evidence of fact, as well as opinion evidence. The evidence must be relevant and use the witness’s expertise. Its admissibility is governed by whether it will assist the court, whether the witness has sufficient knowledge and experience, whether the witness is impartial, and whether a reliable body of knowledge or experience supports it.

Even admissible expert evidence requires permission under CPR 35.4 and must be reasonably required to resolve the proceedings under CPR 35.1. The court must distinguish evidence that is necessary from evidence that is merely helpful, and assess proportionality, including cost, value, likely assistance and delay. Permission may be refused where the evidence could be given by lay witnesses and its cost is disproportionate.

The claimant, a licensee of sound-recording copyright, alleged that the defendant had underpaid royalties due under a licence agreement for the exploitation of a sampled recording through streaming services. The substantive dispute concerned the construction of a 2005 recording agreement and whether treating a physical album as the equivalent record for streaming royalties would have been commercially nonsensical or reasonably apparent to the parties.

At a case and costs management conference, the claimant sought permission under CPR Part 35 for expert evidence concerning the 2005 streaming market, the nature of streaming services, the comparative nature and prices of streaming and compact discs, and the reasons for any price difference. The central issue was whether that evidence was admissible expert evidence and, if so, whether it was reasonably required to resolve the proceedings.

1. Nature of expert evidence. Expert evidence is not confined to opinion evidence. It may include factual evidence which an expert gives by collating and efficiently presenting knowledge from the expert’s field, or by drawing on the general body of knowledge and experience in which the expert is skilled. Evidence remains expert evidence where the witness’s expertise is necessary to identify or explain the relevant facts.
2. Admissibility. The four considerations identified in Kennedy v Cordia (Services) LLP are applicable: whether the evidence will assist the court; whether the witness has the necessary knowledge and experience; whether the witness is impartial; and whether a reliable body of knowledge or experience underpins the evidence. The narrower requirement of a recognised expertise governed by professional standards is appropriate for evidence comparing conduct with professional or industry standards, but is not universally applicable.
3. Procedural control. Relevant expert evidence may be admissible under s.3 Civil Evidence Act 1972, but CPR 35 still applies. Under CPR 35.1 and CPR 35.4, the court asks whether the evidence is necessary, whether it would assist, and, if merely helpful, whether it is reasonably required in the proceedings as a whole. Proportionality includes the value of the claim, likely assistance, cost and delay.
4. Application. The proposed evidence about the 2005 streaming market and the comparative nature and prices of streaming and compact discs was relevant and likely to assist with contractual interpretation and the commercially nonsensical issue. It was only marginally relevant to whether that conclusion would have been reasonably apparent to the contracting parties. The court could not yet assess the expert’s qualifications, impartiality or the existence of a reliable supporting body of knowledge.
5. The evidence was not necessary. Relevant factual evidence could be given by lay witnesses or hearsay evidence. The proposed expenditure of £70,250 to £89,350 was disproportionate to the likely assistance, even against a claim valued by the claimant at more than £1 million. Permission, including preliminary or reviewable permission, was therefore refused unless and until the likely cost of the expert evidence was revisited and reduced.