EXPERT REPORTS SHOULD BE EXCHANGED CONCURRENTLY: THE PRINCIPLES APPLIED IN A CAR HIRE CASE: WHEN EVIDENCE CAN AMOUNT TO A SKELETON ARGUMENT

 The decision of District Judge Glen in Kansal -v- Tang (31st January 2017, County Court at Slough)  is available on the DWF website.  It says a lot about “expert” evidence about hire rates. In particular the judge’s comment that evidence in rebuttal can amount to a “quasi-skeleton argument”.

THE CASE

The court gave directions in a small claims track on a trial in relation to repair costs and car hire costs.  Those directions provided for the mutual exchange of basic hire rates evidence. The claimant made an application to vary the direction to provide for sequential exchange – the defendant’s evidence to be filed first, followed by rebuttal evidence from the claimant. The issues related to the Basic Hire Rate (BHR) and credit hire rate (CHR). The judge rejected the claimant’s application, holding that evidence should be exchanged simultaneously.

THE DECISION

16. The starting point must in my judgment be to focus on the essential task of the court as identified in paragraph 33 of Stevens and set out earlier in this judgment. Although Mr Shale was not minded to concede that this was the case, it is a fact that the CHR contains elements which are irrecoverable and the purpose of the evidence is to establish a value for those elements. The party that is uniquely in possession of the information necessary to establish that value is the claimant. For reasons of proportionality it is not required to submit that information for analysis (see Stevens at [36]). It cannot however in my judgment be then heard to argue that it does not know the case it has to meet on the difference between the CHR and BHR. Nor is it in a position to take ‘pleading points’ when, in this case and in most others, the Claimant declines to state whether he is impecunious or not.

15. This is not in any way to gainsay the fact that the Defendant bears the burden of proving that there is a difference and what it is. However, the fact that one party or another bears the burden of proof does not lead to the conclusion that it should go first in a sequential exchange of evidence. It may be that claimants in such cases now have no interest in serving BHR evidence but if that is right, there is of course no compulsion on them to do so. They can elect to offer no evidence and hope that the defendant fails to prove its case, or they can choose (as they usually do) to put in their own BHR evidence at rates they regard as properly comparable to the CHR to show that there is no difference.

16. There is a practical aspect to this. The Claimant seeks to adduce ‘rebuttal evidence’. Sadly, the experience of this court is that such evidence often amounts to not much more than a quasi-skeleton argument pointing out at great length the deficiencies in the defendant’s BHR evidence (Miller is a good example of precisely this problem). That is not to say that there may not be rare cases where evidence properly so called is required, for (theoretical) example to show that the terms and conditions of a hire relied upon by the defendant are not those applicable. However, usually the only actual ‘evidence’ will be BHR rates and there is no good reason why this should not be the subject of a mutual exchange.

17. I have therefore concluded that in substance this application should be dismissed. I do not consider that as a general rule a claimant in a case of this kind should be entitled to the advantage of sequential exchange of evidence of fact. I do not consider that there are any reasons to order such an exchange in this case. It does however seem to me that some changes to the form of order (apart from that which is clearly erroneous) used in this case are required to meet the points made by Mr Shale.

In particular:

(i) In small claims track cases of this kind factual evidence should be exchanged in accordance with a timetable set from the date of the order rather than 14 days before the hearing as is usually the case. This will enable a claimant in those rare cases when it is necessary to seek permission to adduce evidence in rebuttal well in advance of the final hearing.Defendants ought to be required to produce the full terms and conditions relating to any hire that they seek to rely upon and to ensure that both a daily and a weekly rate is quoted in order to ensure that a fair comparison can be made.