Pan NOx Emissions Litigations, Re

In high-value group litigation, the court may admit additional expert evidence where it may materially assist determination of an important issue, even though the evidence overlaps existing reports and is tendered late. The court should weigh the risk of duplication against the parties’ need to present their best case and the risk of deciding an issue without relevant expertise. Admission may be conditional. The party adducing the evidence may be required to identify precisely which passages respond to the opposing experts and to remove non-responsive or duplicative analysis. Any additional work caused by the late or poorly focused report may justify adverse costs consequences.

This was an interlocutory ruling in group litigation concerning vehicle emissions. Renault sought permission to rely on a proposed report from a practitioner expert responding to parts of the claimants’ expert reports dealing with the French Blocking Statute, particularly the risk of prosecution. The claimants opposed admission on the basis that the report overlapped or duplicated existing expert evidence and contained non-responsive material. The central issue was whether the proposed evidence should be admitted notwithstanding those difficulties and, if so, on what conditions.

1. Application granted subject to conditions. The proposed expert report was admitted despite the court’s scepticism about the extent of overlap and duplication. The court considered that the issue was important in high-value group litigation and that the criminal-sanction implications created significant stakes for the defendants.
2. The court accepted that Renault should be able to put its best case by obtaining a practitioner perspective on the French Blocking Statute issues. Some of the evidence could assist the court and might reasonably be required depending on how the argument developed. The court was not prepared to take the risk that the practitioner aspect would be absent when the issue was determined.
3. Admission did not justify retaining two versions of the academic analysis. Renault was required to identify which parts of the report responded to the practitioner element of the claimants’ expert evidence and to remove or identify passages that were non-responsive or duplicative. Renault was also required to decide which expert was to address particular points, so that the claimants could understand what required cross-examination.
4. The court indicated that there would be costs implications. The additional work caused by the late introduction of the report, including reviewing and removing unnecessary sections, was a consequence that could be reflected in the costs order.