Ben Leeson & Anor v Donald McPherson

A party’s deliberate absence from trial does not prevent the court from considering an expert report already admitted into the evidence. The court may, in an exceptional case, permit an absent party to adduce oral evidence where genuine circumstances prevent attendance. The decisive consideration is fairness in the conduct of the proceedings. Oral evidence should not ordinarily be permitted where the absent party would be able to have its expert cross-examined, while the opposing expert’s evidence would remain untested and the court might be drawn into re-examination or otherwise descend into the arena. Written expert evidence may remain part of the evidential record, but its weight may be reduced where it has not been tested in cross-examination.

The claim was proceeding to trial against the Defendant, Donald McPherson, who deliberately decided not to attend and was not legally represented. The trial nevertheless proceeded in his absence following an earlier ruling, [2024] EWHC 889 (Ch). The Claimants accepted a duty of fair disclosure and put points potentially favourable to the Defendant to their own witnesses.

The issue concerned the status of the Defendant’s factual witness statement and the written and proposed oral evidence of his pathology expert, Dr Richard Shepherd. The central question was whether the expert could give oral evidence without the Defendant or his legal representative attending to call and, if necessary, re-examine him.

1. The Defendant’s witness statement could not stand as proof of the facts to which it referred. CPR Part 32.2(1)(a) establishes the general rule that facts requiring proof by witness evidence are proved at trial by oral evidence in public. The Defendant had not attended trial and had made no application to admit his statement as hearsay. There was therefore no reason to depart from the general rule.

2. The written report of Dr Shepherd, including supplementary reports, already formed part of the evidence because permission had been given to rely on it. The Defendant’s later decision not to attend did not remove it from the evidential record.

3. The court rejected an absolute rule that an absent party can never adduce oral evidence. In exceptional circumstances, a party genuinely prevented from attending in person and unable to participate through legal representatives might be permitted to adduce oral evidence. The issue turned on the particular circumstances and the court’s duty to maintain fairness.

4. On the facts, permitting Dr Shepherd to give oral evidence while the Defendant remained absent would create a material imbalance. His evidence could be fully tested in cross-examination, whereas the Claimants’ pathology expert, Dr Fegan-Earl, would not be tested by the Defendant even though Dr Shepherd’s evidence might impugn his opinion. The court might also be drawn into re-examination or into the arena. The Defendant was therefore required to confirm his intention to call Dr Shepherd and to attend, personally or through counsel, for the pathology evidence. Without that confirmation by the specified deadline, oral evidence would not be permitted. The written reports would still be considered, with such weight as the court considered appropriate.

This was a first-instance procedural ruling during the trial. The court had previously ruled that the trial could proceed in the Defendant’s absence: [2024] EWHC 889 (Ch).