ATTEMPT TO INTRODUCE EXPERT EVIDENCE REFUSED: EVIDENCE NOT ADMISSIBLE AND APPLICATION MADE FAR TOO LATE
In Fraine v Foy  EWHC 2302 (Ch) Master Clark refused an application to rely on expert evidence that was served the day before the hearing. The expert evidence was not relevant, not admissible and the application made far too late.
The action related to a charge over land, in particular whether the charge extended to a £7,000 loan or was for a much greater sum of money. The defendant’s case was that he had signed the final page of the charge and not seen the full extent of the loan. The day before the hearing the defendant served an expert evidence. This evidence asserted that there was a forged signature on a document RX1 (an entry of a Restriction preventing disposition of the land).
THE MASTER’S DECISION ON THE LATE EXPERT EVIDENCE
The Master refused the defendant permission to rely on the expert evidence. It was served too late, without permission and was not relevant to the issues in the case.
First, and primarily, the evidence is not relevant to any pleaded issue in the claim. As noted, Mr Fraine has expressly disavowed any reliance on the RX1. Mr Foy’s counsel submitted that the evidence would assist the court in assessing the credibility of the witnesses. I agree to the extent that Mr Fraine’s and Mr Clarke’s evidence is that they saw Mr Foy execute the RX1, so that if he did not, their evidence would not only be untrue but arguably deliberately so. However, this is not sufficient in my judgment to justify its admission. The general position is that the evidence before the court is, for reasons of proportionality, restricted to evidence relevant to the contested issues in the claim: for example, disclosure as to credit is not generally ordered. It would not in my judgment be proportionate for the time and expense of expert evidence to be incurred solely for the purpose of assessing the truthfulness of Mr Fraine and Mr Clarke.
Secondly, no permission was granted at the CCMC (at which Mr Foy was represented by counsel) for expert evidence. An application for permission at this stage is therefore to be determined by the three-step test in Denton, the prohibition on adducing the evidence being a “sanction” for the purposes of CPR 3.8(1). As to these steps, the failure to seek permission at an earlier stage is plainly serious and significant. The only excuse offered is that Mr Foy has acted in person; but he was not acting in person at the time permission should have been sought. As to the third step, the admission of the evidence would necessitate an adjournment of the trial, with the attendant wasted costs and delay in the resolution of this matter. Even if the evidence were properly admissible, which it is not, the application for permission to adduce it is far too late.