Martin Hague & Anor v David Hague & Ors

Where a single joint expert has reported, a party may seek further expert evidence if it has identified reasons that are not fanciful for cross-checking the report. The court should then consider whether the further evidence can be obtained and addressed fairly within the existing timetable.

Where procedural defaults have caused late disclosure and expert evidence, case management should avoid unfairly depriving the innocent party of a proper opportunity to obtain relevant evidence. If the issue cannot fairly be tried at the current stage, it may be deferred to a later phase, without deciding whether the further report will ultimately be admitted.

This was an unfair-prejudice petition concerning the remuneration paid to the respondents and certain family members. The proceedings had been bifurcated into liability and valuation phases.

The respondents’ disclosure defaults delayed expert evidence. A single joint expert, Mr Baxter, produced a report shortly before trial, relying on salary data whose methodology and comparability remained insufficiently clear. The petitioners sought time to obtain their own expert evidence and asked that the excessive-remuneration issue be deferred to phase 2.

The central issue was whether that course was justified as a matter of case management.

1. The petitioners’ application was allowed. The excessive-remuneration issue was removed from the scope of the present trial and deferred to the later phase.

2. Applying the guidance in Daniels v Walker (Practice Note) 2000 WLR 1382, the relevant question was whether the petitioners had identified reasons that were not fanciful for wishing to cross-check the single joint expert’s report. They had done so. The uncertainty concerned both the instructions given to the expert and the source and composition of the benchmarking data.

3. The court did not determine that a further expert report would ultimately be admitted. That issue was to await the appointment of any further expert, a meeting between the experts, and any further questions put to Mr Baxter.

4. It was impractical and procedurally unfair to require the petitioners to instruct another expert during the ongoing trial. The respondents’ disclosure defaults had contributed to the late crystallisation of the issue, and the petitioners should not be disadvantaged by their continuing effects. Deferral caused no real procedural disadvantage to the respondents and preserved a fair determination of the issue.

5. The court rejected the submission that the issue should nevertheless be decided on a broad-brush assessment. Procedural unfairness could not be justified by the prospect of reaching a broad assessment on the evidence then available.