LET THE COURT KNOW HOW MUCH AN EXPERT IS GOING TO COST: A MANDATORY REQUIREMENT
The short judgment of Mr Justice Warby in Sloutsker -v- Romanova  EWHC 81(QB) contains some important observations about preparing for hearings. It also serves as a timely reminder that a party asking for permission to instruct an expert must give an estimate of the costs of that expert.
The case was an action for libel. The defendant made an application that the court did not have jurisdiction. The defendant became a litigant in person and the judge made various directions.
- The Queen’s Bench Guide sets out clear requirements for the lodging of bundles before a hearing.
- A party seeking permission to adduce expert evidence must make this formally and give an estimate of the costs of that expert. A failure to do so could lead to the application being dismissed or adjourned and have consequences in costs.
- The Queen’s Bench Guide requires a hearing bundle for a fixed date hearing to be lodged by the applicant three clear days before the hearing. The bundle should be properly paginated in date order and contain all the relevant documents. In this case the date for lodging such a bundle was Thursday 15 January 2015. No bundle was lodged. On Friday 16 January, having had no reply from the defendant or iLaw to their letter of 14th, Hamlins wrote to the court, with a copy to the defendant c/o Hamlins, seeking an adjournment. The matter was put before me. I was not prepared to grant an adjournment without further efforts to get a response from the defendant so I suggested the court staff seek a means of ensuring the application was communicated to her. There was no communication from the defendant on the Friday.
- On the morning of Monday 19 January 2015 the papers were returned to me by Listing with the information that there had been no development, the court had no contact details for the defendant, and a bundle still had not been lodged. The hearing was by then 2 days away. Skeleton arguments were due the following morning. There had, as it then seemed, been silence from the defendant. It appeared that she might well not be engaging with the proceedings. I did not know whether she intended to obtain alternative legal representation, or to appear in person, or not to appear at all.
- Against that background, it seemed to me undesirable that the matter should be left in a state of uncertainty, with the possibility that substantial costs would be incurred in preparation for a hearing which in the event did not go ahead. I had in mind the defendant’s own best interests, among other factors. I therefore made the order to which I have referred. That order having been made without a hearing, it provided that the defendant could apply at any time before 4pm on Tuesday 20 January to set aside or vary it. The claimant was directed to bring the order to the defendant’s attention as soon as possible. No application was made by her.
- It turns out that during Monday morning and before I made my order the defendant had responded, via iLaw, to Hamlins’ correspondence, objecting to an adjournment. That first came to the attention of the solicitor at Hamlins on Monday evening, after my order, as he had been in meetings meanwhile. It first came to the attention of Queen’s Bench Listing on Tuesday morning, when they saw an email sent by Hamlins after 7pm the previous evening. By then it was too late to alter the course that had been set by previous events. My order will not have reached the defendant until some time on 20 January, it seems, if indeed it reached her then.
- This morning, Ms Page submitted a short note outlining the current position and sought directions that the defendant’s application be re-listed towards the end of the period which is available, namely the weeks commencing 16 and 23 February, a timetable for service of evidence and other steps, and an order that each party be granted permission to rely on the evidence of 1 expert on the requirements for valid service in Russia of process from England and Wales, and whether those requirements were met in this case.
- I set the hearing date as noted above, and a timetable for evidence, the hearing bundle and skeleton arguments. The defendant being now a litigant in person I directed the claimant to prepare the bundle. I did not grant permission to adduce expert evidence, but directed that any application for permission should be issued and served by no later than 4pm next Monday 26 January 2015, with the defendant to have an opportunity to submit representations in opposition by 4pm on Monday 2 February, and a decision to be made without a hearing as soon as possible after that, by me if available.
- I took this course for two main reasons. First, the claimant had given the defendant only informal notice of an intention to adduce expert evidence, without detail or supporting evidence. Secondly, the claimant had not complied with the mandatory requirement of CPR 35.4(2), that an applicant for permission to adduce expert evidence “must provide an estimate of the costs of the proposed expert evidence”. Without that estimate I was in no position to consider whether and if so how to exercise the court’s power under CPR 35.4(4) to “limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party“. I also directed that no evidence other than evidence served in accordance with my order would be considered at the hearing of the application unless the court gives permission.
- I ordered the claimant to pay the costs of the hearing today and any costs of, caused by, or thrown away by the vacation of the hearing date. Although in my judgment the defendant acted unreasonably in that she failed to lodge a bundle as required by the Queen’s Bench Guide, did not respond in a timely way to Hamlins’ correspondence, and did not address any correspondence to the court, the claimant’s share of the responsibility for the hearing being ineffective was considerably greater. He failed to prepare evidence, or to make any application for permission to adduce expert evidence, in good time. He would have sought an adjournment to allow his new solicitors to do those things, regardless of the defendant’s conduct. I have reviewed the correspondence between the parties’ previous solicitors relating to the preparation of evidence and having done so I cannot see any real justification for the claimant’s failures. In any event they are not the fault of the defendant, who should not be out of pocket as a result.