ADDUCING A SECOND EXPERT WITNESS LATE IN THE DAY: THWAYTES -v- SOTHEBYS CONSIDERED
There is a brief report on Lawtel today of a decision of Rose J in Thwaytes -v- Sothebys (16/09/2014) where permission was given for the defendant to rely on an additional expert and the application was heard six weeks before trial.
The claimant’s claim was for misattribution of a painting sold for £42,000 which the claimant alleged was a Caravaggio which should have sold for £50 million. The claimant adduced expert evidence whose reports went beyond the matters set out in the pleadings. The particulars of claim were amended to reflect the points made by the experts. At a pre-trial review 6 weeks before the trial the defendant applied to be allowed to rely upon the evidence of a second expert.
The claimant objected to the introduction of a new expert as the need for the expert did not arise from the amended pleadings. Further there was no time for a further meeting of experts. However the court held that more specialist evidence would be helpful. The proposed expert meeting was unlikely to be valuable enough to justify delaying the trial. Including the witness statement would not jeopardise the trial date or prejudice the claimant. It would be unfair to prevent the defendant from relying on specialist expertise which its current expert did not have.
This short summary is based on the Lawtel Report. The transcript is awaited. What is interesting is that there is no hint at all of “relief from sanctions” type discussion, although the trial date and prejudice clearly played a part in the discussion. I will report on this case again when the full transcript becomes available.