Calling time on excessive expertise

This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.

Summary and implications

As the 2013 civil procedure reforms become more bedded in, the judiciary appears to be on something of a case management roll. Following Mr Justice Coulson's strong words on costs and Mr Justice Edwards-Stuart's tackling of bundles, there was always a good chance that experts would be next on the list…

The recent Chancery Division decision in British Airways v Spencer and Others (BA) has provided wider guidance as to when and for what reasons a judge will allow a party to rely on expert evidence.

Under the Civil Procedure Rules (CPR), expert evidence is restricted to "that which is reasonably required to resolve the proceedings" which should therefore limit any costs and/or delays in the litigation caused by adducing superfluous expert evidence.

In partly allowing an appeal against a deputy master's decision refusing to permit British Airways to rely on expert evidence in its claim against the trustees of its pension fund, Mr Justice Warren set out the following considerations as to the admissibility of expert evidence:

a) Where expert evidence is necessary (rather than merely helpful) to resolve the matters in dispute, it must be admitted;

b) Where expert evidence would be of assistance but is not necessary, the court should be able to decide the issue without it and it should not be allowed; and

c) Where expert evidence would be of assistance but is not necessary to decide a particular issue, the court may allow it if such evidence is reasonably required to decide the proceeding as a whole. In considering this, the court should bear in mind matters such as the value of the claim, the impact of the judgment and who will bear the costs of expert evidence.

Impact

From a construction perspective, it is difficult to see how this guidance will have much of an impact on most cases to be decided by the Technology and Construction Court (TCC). The subject matter of most disputes that find their way to the TCC naturally lends itself to the need for experts to limit the points at issue and to provide opinions in their specialist area of expertise.

With common issues in dispute ranging from delay, to quantum, to defects indefinitum, it would rarely be the case that the court would not be assisted by expert input, although, some TCC judges have taken some persuading that expert evidence on the causes of delay to a project is required. In these cases, the judges have considered whether the expert delay evidence in question is simply another way of factually presenting what has happened to cause delay. It will be interesting to see if the TCC judges revisit this area in light of the BA judgment.

Conclusion

Although Mr Justice Warren made it clear that the Court "should not be over-zealous in excluding expert evidence in order to save time and cost", his reasoning should be a salutatory reminder to practitioners that they need to consider carefully what expert evidence is truly, to the crux of the matter, necessary. As always, considerations of proportionality and the need to help the court dispose of cases in a timely and cost-effective manner should be at the forefront of any litigation strategy.