PARTIES SHOULD OBTAIN PERMISSION OF THE COURT, AND DIRECTIONS, BEFORE INSTRUCTING EXPERTS

In Gulf International Bank BSC v Aldwood [2019] EWHC 1666 (QB) John Kimbell QC (sitting as a High Court judge) made some observations about using expert evidence on foreign law without the court’s permission.

 

THE CASE

The judge was hearing an application to set aside the Claim Form on the grounds that the court had no jurisdiction.  The Defendant had been served with the claim form and also a worldwide freezing order.

THE JUDGE’S OBSERVATION ON THE USE OF EXPERT WITNESSES

  1.  Both parties rely on expert evidence of Saudi Arabian law. Mr Aldwood relied on a report by a retired judge, Dr Al Massad and a Memorandum of Advice by a Mr Aldowish, who is a lawyer employed by Clyde & Co. in their office in Riyadh. The Claimant relies two reports by a Mr Al Harbi.
  1.  Both parties’ expert evidence was simply served as exhibits to the factual evidence referred to above. Neither party sought permission under CPR 35.4 to adduce expert evidence and all of the reports failed to comply (in varying degrees) with the requirements of CPR Part 35 and the accompanying practice direction. Unhelpfully, each report addressed different issues and each one raised new points not covered in the previous report.
  1.  This highly unsatisfactory state of affairs is strikingly similar to that described by Andrew Baker J. in B.B. Energy (Gulf) DMCC v Al Moudi and Others [2018] EWHC 2595. In that case, which was also an application to challenge jurisdiction, he said this:
“ 49 . [I]t is a matter of significant regret that neither side identified, as undoubtedly they ought to have, that this was a heavy application that needed case management, not least because neither side had permission for reliance upon any expert evidence, permission being required for interlocutory hearings as much as for trials. …[T]hey ought to have appreciated that there was a need to regularise the matter and raise with the court what expert evidence would be required; but equally on the claimant’s side, seeing that, identifying immediately, as they will have done, that there were matters seemingly asserted by the expert opinion that had been provided that would be contentious, the claimant ought to have identified that the defendants had not yet sought permission, that the claimant for its part would wish to challenge and deal with the matters of foreign law on their substance, not on the technicality of whether permission had been granted, and ought therefore to have raised with the defendants the need to come to court.
 
50 . That is not a pedantic procedural concern on the part of the court in this case. In my view it has been a case, albeit that in the end these concerns have not become determinative of the application, in which the absence of either an agreed or directed-by-the-court review of what expert evidence was required, from what experts, answering what questions, has led to the exchange, through the service and counter-service of evidence, of an escalating volume of material not always addressing the same questions or analysing the case for the identification of the questions to be addressed in a consistent fashion and culminating in the late service of a second report by the claimant to which I referred earlier and in respect of which the defendants made a particular complaint.”
  1.  I share Andrew Baker J’s concerns. Better case management is clearly needed for challenges to jurisdiction which involve foreign law expert evidence. Permission ought to be sought under CPR 35.4 to reply on foreign law evidence in all cases. It would also assist if there were a list of issues approved by the court for the foreign experts to address at the very latest before the applicant’s initial report (usually served with the application to challenge jurisdiction) is responded to. The enforcement of the requirement to obtain permission and the production of a list of issues for foreign law experts would go a long way in preventing the situation which has occurred both in this case and in B.B. Energy (Gulf) DMCC v Al Moudi and Others recurring.