Download - Legal Watch - Personal Injury - Issue 23
In This Issue:
• Civil Procedure/Expert Witness
• Occupiers’ Liability
• Jackson/Mitchell
Civil Procedure/Expert WitnessThe commercial case of Rowley v Dunlop and others [Lawtel
17/06/2014] is of general interest when considering the
independence of an expert witness.
An additional claim was brought against the appellant/
defendant under CPR Part 20 for compensation for losses
caused by his alleged breaches of director’s duties. The
company’s claim against the defendant had been assigned to a
claims management company (the CMC) which then assigned
it to the respondent/claimants on terms that, were they to
succeed, the claimants would pay the 30% of the recovery
and a further 45% representing sums owed to the CMC. The
company had sought to rely on a draft forensic accounting
report prepared by an expert. The expert’s biography stated
that he was a partner in a firm, which was operated by its
owner. The owner was also the sole director of the CMC. The
owner of the firm and the expert had considered whether
there was a conflict of interest and had concluded that there
was not. The owner stated that he was only involved in the
CMC as a director who was paid on an hourly basis, was not
a shareholder and had no financial interest in the outcome of
the litigation. The defendant applied to strike out the claim on
the basis that the expert’s report was fatally flawed because
of his conflict of interest arising from his connection with the
owner. He alleged that the expert had deliberately misstated
in a declaration in his report that he knew of no conflict of
interest. The judge at first instance held that there was no
conflict of interest as, although the owner of the firm owed
director’s duties to the CMC, the expert did not owe it any
duty and there was no evidence that the expert, or the firm in
which he was a partner, would benefit from the litigation. The
question of whether the contents of the report showed that
the expert could not be seen as independent was adjourned
pending the instant appeal.
The claimant appealed and submitted that (1) the failure to
provide evidence as to the expert’s connections with the CMC
meant that the court was entitled to infer that there might be
a greater degree of involvement than that which had been
disclosed, such as possible interests in the CMC’s shares
or payments made out of sums recovered by the claimants;
(2) the expert was to be criticised for giving an unqualified
declaration when he knew of his connection with the owner
of the firm and the firm itself.
‘The essential character of witness evidence was that it should be independent, objective and within the expert’s area of expertise’Dismissing the appeal the High Court judge held that it was
unusual on a strike out application to determine whether a
witness who was to give expert evidence was lying, without
having heard oral evidence. However, the case had been
put on the basis that there was a conflict and that the
expert had deliberately misstated that there was not. The
existence of a conflict of interest might not justify rejecting
an expert’s report, but a deliberately untruthful denial of
that conflict might make it appropriate to reject the entire
report. The judge had found that there was no conflict so
the declaration was not untruthful. The essential character
of witness evidence was that it should be independent,
objective and within the expert’s area of expertise. An
expert’s connections with parties could compromise that
character. The court would rarely admit expert evidence
where the expert had a financial interest in the litigation.
The circumstances would dictate whether the court would
admit evidence if there was a conflict of duty. A personal
connection with a party might influence the expert’s
evidence, but that would not normally of itself lead to its
rejection but would go to the weight of the evidence. The
court could not find a conflict of interest from inferences of
the kind that the defendant had suggested. The fact that the
owner of the firm in which he was a partner was a director
of the CMC was insufficient to show that the expert had a
financial interest in the proceedings. It was clear that he was
connected to the owner of his firm and therefore arguably to
the CMC, but the risk of any conscious or unconscious bias
should be explored in cross-examination at trial. The issue
went to weight rather than admissibility. The report was not
inadmissible on the conflict ground.
The claimant’s criticisms had some force. It was clearly
incumbent on an expert to disclose facts which could
be taken into account on his ability to give independent
evidence. The court agreed with the owner of the firm and
the expert that there was no conflict but the fact that they
had considered the matter suggested that there should
have been disclosure of some facts.
Occupiers’ LiabilityAlthough no personal injury was involved, the case of
Stagecoach South Western Trains Ltd v Hind and another
(2014) EWHC 1891 (TCC) is relevant to such claims.
The claimant train operator claimed the cost of repairing
damage to a train, and other consequential costs, against
the first defendant landowner and the second defendant
tree surgeon after a tree on the first defendant’s land fell
onto a railway line.
The tree was at the end of the first defendant’s garden in an
area that was uncultivated and covered with ivy, brambles
and nettles. The tree was an ash and about 150 years
old. It was originally made up of three separate stems.
The northern stem had fallen many years before the first
defendant bought the property. The two remaining stems,
the eastern and the western, grew vertically out of a common
trunk. The second defendant had carried out some work
on the western stem three years before the eastern stem
fell onto the railway tracks. He climbed the western stem
for the purpose of clearing dead wood. After the collapse
an empty train collided with the trunk and was damaged.
The tree was in apparently good condition at the time of the
collapse. The eastern stem fell because the fork or union
between the stems was an “included bark union”, in which
the bark of the two stems pushed against one another and
caused a crack to develop, and because of decay that had
spread from the wound left by the fallen northern stem.
The claimant alleged that the first defendant owed a duty
to have the tree regularly inspected by an arboriculturalist;
if that had happened, the arboriculturalist would have been
obliged to carry out a detailed inspection of the base of the
tree and would have discovered the crack and the decay.
Finding in favour of the defendants, the High Court judge
held that a reasonable and prudent landowner was not
obliged, as a matter of course and without any trigger or
warning sign, to pay for an arboriculturalist to carry out
periodic inspections of the trees on his land. A closer
inspection by an expert was only required where something
was revealed by an informal or preliminary inspection which
gave rise to a cause for concern.
The authorities indicated that an ordinary landowner,
required to act reasonably and prudently, was obliged to
carry out regular preliminary/informal inspections of the
trees on his or her land, particularly where those trees
bordered a highway, a railway or the property of another.
The first defendant was capable of carrying out a meaningful
preliminary/informal inspection of her trees. She was an
educated woman and a regular and enthusiastic gardener
who knew a reasonable amount about trees. She carried out
regular informal inspections or observations of all the trees in
her garden. She carried out those inspections properly. The
tree was apparently healthy. The included bark union would
not have alerted an ordinary landowner to any problem and
was in any event covered in ivy. The wound too was covered
by ivy. A reasonable and prudent landowner was not obliged
to inspect the trunk of an apparently healthy tree which was
difficult to access and covered in ivy.
‘A reasonable and prudent landowner was not obliged to inspect the trunk of an apparently healthy tree which was difficult to access..’ There was nothing that should have alerted the first
defendant, or put her on notice, that the tree was anything
other than healthy, or required a closer inspection by an
arboriculturalist. The claim in tort against her therefore
failed.
The second defendant was a tree surgeon not an
arboriculturalist. The first defendant told him what work she
wanted carried out. He might have expressed an opinion as
to how that work might be carried out but his opinions or
recommendations did not go beyond that. He had not been
asked to inspect the tree and did not do so. His contractual
obligations did not require him to inspect or advise
generally about the tree. His duties were circumscribed by
his contractual obligations. His work on the western stem
did not create sufficient proximity between him and the
claimant. There was no duty to warn and if there had been it
would only have been triggered by the discovery of a clear
defect or something that was obviously dangerous. The
claim against the second defendant also failed.
Jackson/MitchellThere are five cases that broadly sit under this heading this
week.
The thrust of Jackson/|Mitchell is compliance with rules,
practice directions and orders, including pre-action
protocols. Even if a party is successful it may still be
penalised in costs if its pre-action ‘behaviour’ is open to
criticism. That is what happened in Lovell Partnership and
another v Merton Priory Homes (2014) EWHC 1800 (TCC).
A declaration had been made in favour of the claimant
on the interpretation of the clause in issue. In light of that
previous judgment, the defendant accepted that it should
pay the claimants’ reasonable costs of the proceedings.
The costs claimed were £55,000. The defendant submitted
that the costs claimed by the claimants and the costs it had
incurred had been increased by the claimants’ conduct,
particularly in failing to comply with the pre-action protocol.
It was the defendant’s case that the claimants should
recover only two-thirds of their costs.
‘(The delay) had resulted in the respective solicitors having to review a large amount of correspondence when preparing for the instant hearing’The High Court judge held that was no real substance in
the complaint that the claimants had not complied with the
protocol. The letter from the claimants’ solicitors had set
out their position sufficiently clearly. Although the claimants’
argument became more nuanced in the course of oral
argument, the thrust of it was largely unchanged. However,
their delay in bringing the claim had unreasonably increased
the costs to both sides. The claimants had known their
position at the end of 2010 but had not issued proceedings
until March 2014. That had resulted in the respective solicitors
having to review a large amount of correspondence when
preparing for the instant hearing. Further, the claimants
had refused to give an undertaking to meet any costs order
made in favour of the defendant. That issue had been live
for only a month and had therefore not added greatly to the
costs. The claimants’ costs were substantially less than
those claimed by the defendant, even though they had the
carriage of the action. The costs incurred by both parties
should have been less than they were. The claimants were
entitled to £45,000, which represented a proportionate
amount after making a modest reduction to reflect those
costs that were unnecessarily incurred by the defendant.
CommentThose handling cases in the pre-litigation stage should
be aware of the requirements of the relevant pre-action
protocol. If there is no specific pre-action protocol the
Practice Direction – Pre-action Conduct will apply. Steps
should be taken to ensure that the protocol is complied with
but in the light of cases like this, it is increasingly important
to note and record non-compliance by another party. As can
be seen this could lead to an adjustment in costs later, even
if the other party is successful overall.
As the case of Warners Retail Ltd v National Westminster
Bank Plc and another [Lawtel 13/06/2014] shows, the courts
continue to adopt a robust approach to compliance with
CPR, even where an application is not one for relief from
sanctions.
The claimant alleged that the defendants had missold to it
interest rate swaps, and in particular that they had given
negligent advice in breach of their duties of care. The trial
was due to begin about three weeks after the hearing of this
application and it was common ground that, if the claimant
was granted permission to adduce the expert evidence, the
trial would have to be adjourned.
The defendants contended that it would be contrary to
principle to allow the claimants to adduce the expert
evidence because it had not pursued its case diligently. They
relied on the principles expounded in Mitchell to urge the
court to exercise its discretion against granting permission.
The claimant argued that there would be an inequality of
arms if permission was not granted because it needed
the expert evidence to establish the defendants’ alleged
breaches of duty and the existence of a body of expertise
on interest rate swaps. It further argued that its application
was not covered by the Mitchell principles because it was
not seeking relief from sanctions under CPR 3.9.
‘Adjourning the trial could have caused disruption to other court users’Refusing the application, the High Court judge held that it
was unnecessary to determine to what extent the Mitchell
principles were applicable in the circumstances of the
instant case because the overriding objective under CPR
1.1 pointed firmly towards dismissing the application. The
claimant had made much of the need for it to be on an
equal footing with the defendants. However, neither party
would be able to rely on expert evidence at trial and the
claimant could still instruct an expert to help it prepare for
cross-examining the defendants’ witnesses. Accordingly, it
could not be said that a refusal of permission would prevent
the claimant from properly presenting its case. Further,
there would have been considerable expense if the trial was
adjourned at such a late stage and the defendants would
have been prejudiced. Allowing a long-standing trial date
to be adjourned in the circumstances would have been the
antithesis of dealing with the case expeditiously and fairly.
Adjourning the trial could have caused disruption to other
court users and there was no good reason for the claimant’s
delay in bringing the application. Accordingly, applying the
overriding objective, the claimant was not permitted to
adduce the expert evidence.
CommentThis is yet another decision which focuses on the wider
issue of court resources and the impact of orders in one
case on the parties in other, unrelated cases. This theme
has been carried through into the amended wording to CPR
3.8 which came into effect on 5 June 2014:
‘…the time for doing the act in question may be extended by
prior written agreement of the parties for up to a maximum
of 28 days, provided always that any such extension
does not put at risk any hearing date’ (emphasis added).”
The Mitchell approach was also applied rigorously in
Cranford Community College v Cranford College Ltd [Lawtel
18/06/2014].
The claimant/respondent had issued proceedings against
the defendant/applicant for passing off. Directions
were given for the exchange of witness evidence and
subsequently the parties agreed an extension of time for
exchange. The claimant duly served its witness statements
by the agreed deadline but the defendant failed to do so.
It served statements from three of its key witnesses13
days later and then applied for the court’s retrospective
permission to serve those statements. In explaining its
non-compliance, in respect of one witness the defendant
referred to the fact that his wife had been ill and hospitalised
before the deadline for exchange, so that he had been
spending much of his time at hospital or caring for his wife. A
second witness had had to attend unexpected professional
engagements in Cyprus before the deadline for exchange
so that he was unable to finish his witness statements
on time. The defendant provided no explanation for non-
compliance with the deadline in respect of its third witness.
It was common ground that, although the defendant had not
formally applied under CPR 3.9, its application had to be
considered under that rule, in light of Mitchell and the other
relevant authorities since.
Applying those principles, the defendant argued that its
non-compliance was only trivial because its 13-day delay in
serving the statements was unlikely to have prejudiced the
claimant. It also argued that it had provided a good reason
for its failures to comply with the deadline for exchange.
‘...since Mitchell, courts were more particularly required to take into account not only the effect a grant of relief from sanctions would have on the parties, but also the culture of litigants in meeting deadlines...’Allowing the application only in part, the judge held that as
to triviality it was clear that since Mitchell the question of
whether the opposing party was prejudiced by the failure to
comply was less significant. A delay of 13 days, especially
when the trial date was not far away, was not trivial. As
to the alleged good reasons for non-compliance, in the
case of the first witness it was very possible that his wife’s
condition had become the priority in his life to the extent
that the demands of the litigation had seemed to him less
important. On the assumption that that was the case, the
first witness had had an exceptional reason for why his
statements had not been served on time, and accordingly
the court was prepared to grant retrospective permission for
him to serve his witness statements late. As to the second
witness, his reason for non-compliance was unsatisfactory.
His explanation was extremely brief and the court was
left with no way of knowing how important the Cypriot
engagements were or to what extent the second witness
had done anything significant to complete his statements
on time. In the circumstances, it was appropriate to refuse
to allow both him and the third witness, who had provided
no explanation whatsoever for his non-compliance, to serve
their witness statements late. Such a sanction was not
disproportionate. It was important to remember that, since
Mitchell, courts were more particularly required to take into
account not only the effect a grant of relief from sanctions
would have on the parties, but also the culture of litigants
in meeting deadlines, which was to be maintained as much
as possible.
The last two decisions can be contrasted with Warner v
Merrett [Lawtel 16/06/2014].
The applicant/claimant had failed to serve documents
relating to additional costs liabilities for solicitor and counsel
success fees and an after-the-event insurance premium
which CPR PD 43-48 required should be served with the bill
of costs. The respondent/defendant served points of dispute
contending that as a result of that omission CPR 44.3B(1)
required that the success fees and insurance premium had
to be disallowed unless the court ordered otherwise. The
claimant immediately supplied the documents and applied
for relief from sanctions.
He argued that (1) the automatic sanctions under CPR
44.3B did not apply where the documents were served late
rather than not at all; (2) alternatively, relief from sanctions
under CPR 3.9 should be granted because the sanction of
automatic disallowance of additional costs was created
before CPR 3.9 had been amended, at a time when relief
would usually be granted absent prejudice; there was no
disruption to the court; he had attempted to comply with the
practice direction and the defendant could have requested
the missing documents.
Allowing the application, the deputy High Court judge held
that CPR 44.3B(1) was of general application and applied
to all stages of proceedings. The claimant’s omissions were
subject to the automatic sanctions.
‘The decision in Mitchellprovided guidance…but should not be applied like a rule or statute’The decision in Mitchell provided guidance on how to apply
CPR 3.9, but that judgment should not be applied like a
rule or statute. It was not appropriate to focus intensely
and narrowly on the word “trivial” in the Mitchell guidance.
It was necessary to look at the context and the effect of
the breach. The question of triviality had to be seen in the
context of the duty to co-operate imposed on lawyers
involved in Mercantile Court cases. Little weight was placed
on the claimant’s argument that the rule had been devised
before CPR 3.9; to do so would erode the force of the new
rule. The breach was of a general kind and not a total failure.
The consequences of the breach caused inconvenience
to the defendant, not the court. There was no duty on the
defendant’s solicitors to contact the claimant’s solicitors for
the missing information, and they could not be criticised
for not doing so, but the prejudice claimed to have been
caused to the defendant could have been avoided by
sending an email or making a telephone call. Further, there
had been no breach of a court order, no history of default
and the claimant’s solicitors had acted immediately when
they became aware of the omission. In the context, the
breach was trivial or insignificant. Even if that were wrong, it
was just to grant relief in all the circumstances.
A pragmatic approach to a technical breach of the rules was
also adopted in Americhem Europe Ltd v Rakem Ltd and
others (2014) EWHC 1881 (TCC).
The defendant filed a costs budget in the form of Precedent
H annexed to CPR PD 3E. While compliant in every other
respect, it was signed by a costs draftsman. He was included
in the budget as a fee earner, but he had no involvement in
the case other than the preparation of the costs budget.
The third party applied for an order that the defendant was
in breach of CPR3.13 because the costs draftsman was
not a senior legal representative of the defendant and that
therefore the effect of the budget being signed by him was
that it was a nullity. It argued that the consequence of that
was that CPR 3.14 was applicable and the defendant was
to be treated as having filed a budget comprising only the
applicable court fees.
‘...even if the costs draftsman was a legal representative, he could not be considered a “senior legal representative” within the meaning of PD 3E’Dismissing the application, the High Court judge held that
there was no definition of “senior legal representative” in PD
3E or in the CPR. However, CPR 2.3(1) provided a definition
of “legal representative” which was at least persuasive in
considering the meaning of “senior legal representative”
in PD 3E. Viewed overall, CPR 2.3(1) seemed to connote
someone who was representing in a legal capacity, which
was not what was being done by a costs draftsman whose
only involvement was the preparation of a costs budget,
and who did not give any form of legal advice or legally
based representation. Even if the costs draftsman was a
legal representative, he could not be considered a “senior
legal representative” within the meaning of PD 3E. Of the
three fee earners listed in the budget he appeared to be the
least senior, at least by reference to his charging rate, and
moreover as a costs draftsman he was not independently
able to verify that the provision of resources that appeared
in the costs budget was reasonable, particularly as he had
no other involvement in the litigation at all. However, that
did not render the costs budget a nullity. The fact that it
was signed by the costs draftsman was an irregularity.
The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.
www.plexuslaw.co.ukwww.greenwoods-solicitors.co.uk
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The document was in a form which stated that it was the
defendant’s costs budget and was immediately recognised
as such. To hold that it was not would lack any form of reality
or justification. In the circumstances, there was no need for
relief from sanctions. The proportionate and just response,
given that no-one had been significantly disadvantaged
by the irregularity, was to require it to be remedied at the
defendant’s cost and to compensate the third party for the
modest cost involved in bringing the matter to the attention
of the court.