JUDGE WAS RIGHT TO REFUSE CLAIMANT’S APPLICATION TO ADJOURN AND NOT TO ALLOW SINGLE WITNESS IN PLACE OF JOINT WITNESS: HIGH COURT DECISION TODAY

In Hinson v Hare Realizations Ltd (2) [2020] EWHC 2386 (QB)  Mr Justice Martin Spencer refused a claimant’s appeal where it was argued that a trial judge should have adjourned a trial and given the claimant permission to rely on a singly instructed expert in place of a joint expert.

THE CASE

The claimant brought an action alleging he had been exposed to excessive noise.   A joint engineering expert had been instructed.  The matter was listed for trial in November 2019 but taken out of the list.  Shortly before the trial the claimant made an application for permission to rely on a singly instructed expert and for an adjournment of the trial.

THE PROCEDURAL HISTORY

The action had been listed for hearing twice before the date on which the application was made.

  1. The trial was originally listed to be heard on 5 November 2019, but was vacated due to lack of judicial availability and relisted for 6 December 2019. At that stage, there had been no application to adjourn the trial or for permission for the Claimant to rely upon an alternative expert. The second trial date was also vacated, this time on the Claimant’s application as he was in hospital and unable to attend. On 19 December 2019, the court relisted the trial to take place on 27 February 2020.
  2. What then happened was that, on 20 December 2019, in discussions with another expert, Mr Adrian Watson, in relation to another claim for NIHL, the Claimant’s solicitor learned that there were, or might be, deficiencies in Ms Martin’s report relating to the applicability of the PERA Survey of Noise in Engineering Workshops (1996) setting out typical machine shops noise levels: for more detail, see paragraph 15 below in this judgment. Taking advantage of the further delay, on 23 December 2019 the Claimant applied to the court to put further Part 35 questions to the single joint expert, based upon what the solicitors had learned from Mr Watson on 20 December. District Judge Riley granted permission to the Claimant to put the further Part 35 questions to Ms Martin on 9 January 2020. At that hearing, the Claimant’s then counsel, Mr Farrell, referred to the fact that those instructing him had had a conversation with another expert on 20 December 2019 and had made their application to put the further Part 35 questions to Ms Martin three days later. Ms Martin provided her responses to the further Part 35 questions on 6 February 2020.

THE CLAIMANT’S APPLICATION

The claimant obtained new expert evidence and sought to adjourn the trial and have permission to rely on that new expert.

    1. On 10 February 2020, the Claimant’s solicitors wrote to the Defendant’s solicitors advising that they were “obtaining the Claimant’s instructions” in the light of Ms Martin’s further replies: at the same time, the Claimant’s solicitors commissioned an expert report from Mr Watson, although they did not inform the Defendant that they were doing so. Mr Watson’s report, which was favourable to the Claimant, was received by the Claimant’s solicitors on 24 February 2020, three days before the date listed for trial, and an application was immediately issued for an order that:

i) The trial listed for 27 February 2020 be vacated and be relisted for a two-day trial;

ii) The case be reallocated to the multi-track (having previously been on the fast-track);

iii) The Claimant be given permission to rely upon Mr Watson’s report, with Ms Martin to continue as the Defendant’s expert.

The draft order attached to the application also provided for further directions to be given. I would comment that it was somewhat presumptuous of the Claimant’s solicitors to assume that, if the Claimant was given permission to rely upon the report of Mr Watson, that the Defendants should be forced to rely upon the report of Ms Martin as the Defendants’ expert, she having been previously instructed on a joint basis: the Defendants might have sought permission to rely on their own, different expert.

THE DECISION OF THE RECORDER

The Recorder refused the claimant’s application for an adjournment and for permission to instruct a new expert.  The claimant did not succeed at trial.

THE DISMISSAL OF THE CLAIMANT’S APPEAL

The claimant’s appeal was dismissed.  It was held that the Recorder applied the correct test and the decision was not one that could be successfully impugned on appeal.

    1. The starting point is, as Miss Smedley submitted and as was observed by Eady J in Bulic’s case at paragraph 9, that the hurdle faced by a claimant in seeking to persuade an appellate court that the exercise of discretion by a judge at first instance was erroneous is a significant one. I would need to be satisfied that the learned Recorder had misdirected herself in law or had applied the wrong test or had taken into account matters which were irrelevant or had failed to take into account relevant matters which had they not been taken into account or been taken into account, or should have made a significant difference.
    2. In my judgment, the correct approach to applications by parties to abandon a single joint expert and adduce their own expert evidence is that set out by Eady J in Bulic’s case. Eady J referred to the decision of the Court of Appeal in Daniels v Walker, where Lord Woolf said:

“… where a party sensibly agrees to a joint report and the report is obtained as a result of joint instructions in the manner I have indicated, the fact that a party has agreed to adopt that course does not prevent that party being allowed facilities to obtain a report from another expert or, if appropriate, to rely on the evidence of another expert. In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue. It is to be hoped that in the majority of cases it will not only be the first step but the last step. If, having obtained a joint expert’s report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert’s report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.”

In my view, the words “subject to the discretion of the court” are important. As Eady J said in Bulic’s case, the Court of Appeal did not intend to apply any straitjackets to the court. Eady J said:

“15. … In referring simply to requiring a ‘good reason’ [Lord Woolf] was clearly recognising the need for flexibility. What is a ‘good reason’ in one case may prove quite inadequate in another. None of these judicial observations, made in the context of applying broad principles to very specific factual circumstances, should detract from the breadth of the court’s discretion from the general terms in which the guidance was given in the earlier cases.”

    1. Eady J also referred to the decision of HHJ MacDuff QC (as he then was) in Kay v West Midlands Strategic Health Authority which had been relied upon by Judge Simpkiss at first instance in Bulic’s case, where Judge Mac Duff stated:

“Where a party requests a departure from the norm and makes what one can term a Daniels v Walker application, all relevant circumstances are to be taken into account but principally the court must have its eye on the overall justice to the parties. This includes what I have called the balance of grievance test. The application will only succeed in circumstances which are seen to be exceptional and to justify such a departure from the norm.”

In Bulic’s case, Eady J emphasised the importance of the overriding objective and Judge MacDuff’s reference to the “overall justice to the parties”. He pointed out that what represents justice between the parties will be very fact sensitive so that it may be distracting to focus too analytically on the reasoning in other cases, however authoritative where the facts were not truly comparable.
  1. In my judgment, in the present case, the learned Recorder was faced with the clear task of balancing the interests of the parties, taking into account not only the overriding objective but also the interests of justice generally in seeing that cases are decided expeditiously, at proportionate cost and without undue inconvenience to other parties. In my judgment, the approach of the learned Recorder to this task was impeccable. She was fully aware of the interests of the Claimant and in particular the fact that the evidence of the single joint expert was central to the issues in the case, was technical and that the Claimant had good reason for wishing no longer to rely upon that report. She also took into account that, for whatever reason, the application was being made at a late stage in a case which had already been adjourned twice, albeit not for reasons for which any blame could be attached to the Claimant. She took into account the fact that, but for the non-availability of a judge, the case would have been decided the previous November without any such application being made and the fact that the single joint expert had been chosen by the Claimant and the Claimant had raised questions of that expert on two occasions. She took into the account the fact that if she acceded to the Claimant’s application, what would otherwise would have been fast-track trial would become a multi-track trial with a significant increase in costs. Finally, she took into account the late stage of the application and the fact that it would involve the breaking of a fixture with potential waste of court time and inconvenience to other parties. In my judgment she did not emphasise any particular aspect unduly, to the exclusion of other aspects, but she weighed up all those matters before deciding to exercise her discretion in the way that she did. I take the view that the decision by the learned Recorder was well within the generous ambit of her discretion and that it cannot be said that she erred in law or applied the wrong test or otherwise so misdirected herself that her decision is capable of challenge.
  2. I gave permission to appeal in this matter on the basis that it seemed to me that there were issues surrounding the circumstances in which the court should or should not allow a party to abandon a single joint expert and instruct his own expert which might raise questions of general importance, particularly, perhaps, in low value NIHL cases where the single joint expert’s opinion will often be determinative of the outcome in the case. However, having heard the argument, I became convinced that the approach of Eady J in Bulic’s case, and the approach of the learned recorder in this case effectively following Eady J, was absolutely the right one and even though, in that case and on its particular facts, Eady J allowed the appeal and overturned the exercise of discretion by the judge below, the principles with regard to the appropriate approach of the court to such applications which he set out in his judgment were absolutely the right ones and, more importantly, had been applied appropriately by the learned Recorder in this case. In those circumstances, the appeal is dismissed.