DEFAULT, DELAY AND EXPERT EVIDENCE: COURT OF APPEAL LAYS DOWN THE LAW

The case of Boyle –v- Commissioner of Police for the Metropolis provides another example of the problems caused by late service of evidence. The Court of Appeal set down clear guidance of the new culture of intolerance to delay.

 THE BOYLE CASE

Boyle was an appeal to the Court of Appeal by the claimant who had been unsuccessful at first instance. There were several grounds of appeal. The case concerned alleged negligent driving by a police officer.

On the morning of the trial the claimant applied for permission to serve out of time a three page report with 70 pages of statistical attachments from a medical expert dealing with the effect of the speed of the car on the claimant’s injuries.

The trial judge rejected the claimant’s application. The evidence had been served one day before trial. Further it did not assist in the assessment of the issue of whether the injuries would have been reduced if the defendant had been driving slower.

THE APPEAL

The claimant’s appeal was dismissed by the Court of Appeal. The Court made trenchant observations in relation to the late service of the expert evidence and the judge’s exercise of his discretion.

LATE SERVICE OF THE EXPERT REPORT

Lord Justice Longmore:

…the report had been served on Friday of the week before the trial was due to begin.  This was absurdly late, especially since the trial was originally due to start on Monday 25 February.  The judge of course had a discretion in the matter, and whether one calls his decision a case management decision or not, which is what Mr Bishop submitted it was, does not seem to me to matter very greatly.  In fact, the judge considered the matter carefully.  He followed the notes to part 35 in the White Book which said that a late application to call expert evidence was effectively an application for relief from the sanction of being unable to call expert evidence which had not previously been served.  The judge considered all the matters he was required to consider under the then current version of CPR 3.9 (it has since April of this year been considerably simplified).  It is, in my judgment, impossible to see that the judge has gone wrong in his assessment of those factors in any way, especially in the light of the fact that the claimant’s solicitors had been expressly invited, in correspondence from the defendant’s solicitors, to serve the necessary evidence.  There was not before the judge, and there still is not, any explanation of how the matter came to be ignored or overlooked.”

SHOULD THE TRIAL JUDGE HAVE ADJOURNED THE ISSUE OF CAUSATION?

The expert’s report dealt with causation. The claimant argued that the judge should have adjourned the issue of causation until after the judge had made findings as to the speed at which the defendant’s drive should have been travelling.

 “That might have been a sensible approach when the original case management conference was held, but at that conference it was decided, no doubt by agreement between the parties, by Master Kay on 16 February 2012 that liability should be determined first and quantum should be decided at a later hearing.  Once Master Kay had decided that liability was to be determined first, causation had to be addressed.  That was the purpose of Master Kay ordering that the parties were to have permission to adduce expert evidence in the field of spinal surgery, and that the claimant’s expert report was to be served by 22 June 2012.  Any trial merely of the questions of breach of duty and of the safe speed for Mr Currey to be driving would be not only contrary to Master Kay’s order, but would have been conducted in a vacuum without either counsel or the judge having any idea of the consequences of any particular finding.  It seems to me that the judge was right not to contemplate any such outcome so late in the day.

 INTOLERENCE OF DELAY

However the key part of the judgment is the observations in relation to late service of expert witness evidence.

“There is the further important consideration that, as must now be well known, the courts are becoming less and less tolerant of failure to serve expert evidence in accordance with previous orders of the court, just as they are becoming less and less tolerant of other breaches of court orders.  It is not merely prejudice to the parties that matters.  There is prejudice to the system of justice as a whole and, in particular, to waiting litigants if their cases are to be deferred because of delays in litigation currently before the court.  We were referred to a case in the early days of the Civil Procedure Rules, in which this court, albeit in a case where the expert evidence sought to be relied on was on an extremely narrow point, said that the whole thrust of the CPR regime is to require the parties to behave reasonably towards each other in the conduct of litigation and that the old culture, which used to drag personal injuries cases out, should now be at an end, see Baron v Lovell [2000] PIQR 20 at 27 per Brooke LJ.  This has been emphasised over and again in subsequent decisions, two of which, as it happens, Fred Perry Holdings Ltd v Brands Trading Plaza Ltd [2012] EWCA Civ 224 and Mannion v Ginty [2012] EWCA Civ 1667, are referred to in the notes to rule 3.9 in the current supplement of the White Book.  As the judge in this case said, any court is reluctant to see a catastrophically injured claimant go uncompensated, but there has to be a clear message that prolonged and persistent failures to comply with court orders may well result in cases being dismissed.  In the present case, one cannot know what any properly adduced expert evidence would conclude, but we cannot interfere, as it seems to me, with the decision of the trial judge, properly arrived that, that permission to call late expert evidence had to be refused and that the case at trial had to fail”

HIGHLIGHTS FROM THAT PART OF THE JUDGMENT

It is worthwhile extracting highlights from that final part of the judgment.

“ the courts are becoming less and less tolerant of failure to serve expert evidence in accordance with previous orders of the court, just as they are becoming less and less tolerant of other breaches of court orders.”

And

…there has to be a clear message that prolonged and persistent failures to comply with court orders may well result in cases being dismissed.”

 SUMMARY

We are still awaiting the judgment in Mitchell however, as we wait, it is worth remembering that the “new broom” approach to litigation does not just apply to relief from sanctions. It applies across the board. Parties to litigation must have a clear view of the evidence needed when they start litigating and, in particular, know they expert evidence they require.  The late service of expert evidence, without prior permission, is likely to receive short shrift.

WHERE TO FIND THE CASE

The case is reported at Boyle –v- Commissioner of Police for the Metropolis {2013] EWCA Civ 1447 and can be found here http://www.bailii.org/ew/cases/EWCA/Civ/2013/1477.html

RELATED POSTS

For a similar example where it was the defendant that served evidence late and was refused permission to rely on expert evidence see the discussion of Dass –v- Dass at http://civillitigationbrief.wordpress.com/2013/08/20/failure-to-comply-with-cpr-can-bite-defendants-too/

There are numerous posts relating to first instance decisions in relation to CPR 3.9 in the post Jackson era.

Of course we are awaiting the Court of Appeal decision in Mitchell.

The Mitchell case (in the context of relief from sanctions) has been discussed:

Notes of the submissions made at the appeal hearing in Mitchell can be found at: