The judgment of Mr Justice Freedman in  Doyle v HDI Global Specialty SE [2023] EWHC 2722 (KB) shows a surprising set of facts when an expert wrote directly to the court.  The expert made it clear that he was not going to take part in the joint meeting, or attend trial.  A judge refused an adjournment to allow the claimant to consider matters.  The matter then went to trial and was dismissed.  The claimant appealed against the case management decision refusing an adjournment. That appeal was dismissed.  There were two similar cases being considered. Here we look at one of the cases under appeal the case of Doyle.  The other appeal in Rowe will be looked at in a later post.

“HH Judge Carter was not satisfied about the willingness of ABC to give evidence since it was contrary to the information provided to the Court including in the email of 3 August 2022. He asked for confirmation to be provided within 30 minutes that ABC would attend, but when this was not provided, the Judge disallowed the application, and refused an opportunity over the ensuing few days for the confirmation to be given.”


The claimants brought an action under the Third Parties (Rights Against Insurers) Act 2010 alleging the defendant were liable for damage done by the installation of cavity wall insulation. The claimants relied on an expert “ABC” who provided a report after the original expert moved abroad.  Directions were made for the joint meeting of experts, however ABC did not attend.



The expert wrote directly to the Court stating that he did not plan to attend and should not be regarded as being “on the record”.

    1. In breach of the order of 21 June 2022, there were no joint discussions between the experts due to the fact that ABC did not attend discussions with Mr Mancini.
III The email of 3 August 2022 from ABC
    1. HH Judge Carter referred to an email of ABC dated 03 August 2022 which the Court had received from in relation to this claim. This was headed “CASE: G73YJ960 Application to be struck from the record”. The email was not copied to the solicitors for either side. It stated:
“Dear Sir/Madam
This letter concerns my participation as Surveyor Expert Witness in court case number: G73YJ960.
I am a chartered surveyor and my firm (REEF) is regulated by the Royal Institute of Chartered Surveyors (RICS).
Under the RCIS Guidance: UK surveyors acting as expert witnesses 4th edition, amended August 2020 and in line with GN4 section 4.2 and PS3 section 3.2 of that documents, I am required to bring your attention that I should not be on the court record and request my removal for the reasons set out below.
My appointing lawyers in this case were SSB Law of Sheffield.
1) Following 2 meetings with SSB Law at their offices in Sheffield (I live in south west Devon) and having multiple calls with them, and redrafting my Standard Terms and Conditions and Letter of Engagement to meet their required amendments, SSB have not signed Terms with my firm. These Terms of Engagement are a requirement of my regulator. At the time of writing this letter, my invoices for all works in connection with this case and other cases undertaken for SSB Law remain unpaid and overdue. Wesley Bower, managing director of SSB Law asked (in a phone conversation on 26.7.22) that I wait until the end of September 2022 but disclosed this is subject to a successful application being made by SSB Law for funds, I am forced to reasonably conclude that/there is no guarantee that SSB Law have, or will have, the funds to pay for my firm’s services.
2) [there is no sub-para 2]
3) SB Law have routinely named me on cases, often without my consent of knowledge, and/then issued instructions after the event.
4) SSB Law have been submitting Part 35 report for cases that purport to have my signature on. However, in ALL instances I have not seen or participated in the creation of the report – save the inclusion of my site notes without any of my photos.”
    1. At the PRT on 19 August 2022 HH Judge Carter read out part of the email which said that ABC could not continue as the Claimant’s expert in this matter. At the hearing, the Judge said that he understood that SSB maintained that ABC is prepared to act in the proceedings which Counsel confirmed to be the case. The Judge then said that some written confirmation from ABC was required that he was going to attend and engage in these cases because the documentation which he has got is to contrary effect. The Judge proposed to give half an hour to sort that out. After an adjournment of 25 minutes, Counsel returned and said that there was nothing in writing. The Judge then said: “I think the difficulty that you have got, is that there is no real evidence to show that ABC is going to attend anyway. And it seems that you have not paid them.”
    1. In his judgment, HH Judge Carter said the following about the email:
“10. ….But in effect, those emails (there were two others in other cases) inform the court that ABC is not now prepared to act as the expert on behalf of the claimants due to the failure of the claimants’ solicitors to pay him his outstanding invoices.
11. In bold, towards the end of those emails, he makes it quite clear: “I am not able to act as expert witness in this case, and furthermore I no longer have the professional capacity or resources to act in these circumstances.”
  1. Mr Doyle had not been copied by ABC into his email and neither he nor his legal advisers had seen any of these emails prior to HH Judge Carter referring to them at the hearing.


As a result of this both parties made applications to the court.

    1. On 9 August 2022, HDI issued an application seeking an order that Mr Doyle should not be allowed to rely on oral or written evidence of ABC at trial.
    1. By application dated 16 August 2022, Mr Doyle applied to the Court to vacate the trial listed on 6 September 2022 and stay the claim for six months at the PTR to allow time to liaise with his expert and that the PTR be vacated. This would involve the loss of the three-day trial fixture. He applied for relief from sanctions in respect of some procedural defaults including most significantly the failure to comply with a direction about the preparation of a joint statement of experts contrary to an order of DJ Clarke dated 15 June 2022. There was another application of much lesser consequence of minor delay in paying a trial fee, which was regarded by the Court as neither serious or significant. On 19 August 2022, HH Judge Carter dismissed the Claimant’s application to vacate the trial and for a stay. It is from this that Mr Doyle appeals.
    1. Mr Doyle relies on the original skeleton argument dated 15 September 2022 and on the replacement skeleton argument dated 6 June 2023. Mr Doyle relies on various grounds of appeal which have been supplemented by amended grounds of appeal. The application was supported by the witness statement of Mr Alexander Howe dated 16 August 2022 and Mr Melvin Pemberton dated 26 May 2022, of Mr Doyle’s solicitors as well as the witness statement of ABC dated 29 June 2022.
    1. At the hearing on 19 August 2022, the Court was informed orally that ABC had spoken by telephone with Mr Doyle’s Solicitors, saying that he would be continuing to act as expert in this matter. ABC was then away on holiday for two weeks. Thus, realistically, ABC would not be able to complete the Joint Statement before the end of one month, and therefore, the trial would need to be vacated.
  1. HH Judge Carter was not satisfied about the willingness of ABC to give evidence since it was contrary to the information provided to the Court including in the email of 3 August 2022. He asked for confirmation to be provided within 30 minutes that ABC would attend, but when this was not provided, the Judge disallowed the application, and refused an opportunity over the ensuing few days for the confirmation to be given.


The judge allowed the claimant to rely on the written report. However, at trial, it was agreed that the matter could not proceed without the expert being present.  The claim was dismissed.

    1. HH Judge Carter refused permission at [18] to debar Mr Doyle from relying on the written report of ABC. It was a matter for the trial judge as to what weight should be given to the written report in the absence of ABC attending to give oral evidence and in the absence of a joint report.
    1. At the end of the judgment, HH Judge Carter said that he did not vacate the PTR. He saw no reason why a claim such as this should be stayed for a further six months to allow Mr Doyle’s solicitors to get their case in order.
V Trial on 6 September 2022
  1. At the trial HH Judge Khan heard Mr Doyle’s application dated 2 September 2022 to vacate the trial and stay the claim pending the appeal. Upon the parties agreeing that without oral expert evidence from ABC, Mr Doyle would not succeed in his claim, the Court ordered by consent to dismiss the claim with costs orders pending the appeal.


The claimant appealed the case management decision not to allow an adjournment.  Some of the factual assertions made by ABC were disputed.  However the judge dismissed the claimant’s appeal.

    1. In my judgment, the email of ABC was not an application under CPR 35.14. It was not a request for directions for the purpose of assisting him in carrying out his work. Neither was it expressed as such, nor was there any reason to construe it as such. It was a statement to the Court that he had no intention of remaining an expert, and so there were no directions being sought.
    1. A possibility is that it could have been returned to ABC pursuant to CPR 39.8. That is not directly in point: that is what is to happen when a party to the proceedings communicates with the court without copying the document to other parties. The Court then is directed to return it to the sender without considering it and with a brief explanation of why it is being returned, unless the Court directs otherwise: see CPR 39.8(5). This is not the same because the communication came from an expert witness and apparently for himself and not on behalf of the parties.
    1. It might be said that a greater opportunity was required in order for instructions to be taken as to whether ABC would appear as a witness. The Judge only allowed a very brief time. This was not a serious procedural irregularity, and the failure to do so, did not give rise to any injustice. The reason for this is that it made no difference. What were the possibilities? One was that ABC would confirm that he would not act. The other was that by the time the discussion had come to an end, it would have become apparent that there was no possibility of ABC acting. This might have been due to the absence of satisfactory answers to the difficulties about false reports in his name or the difficulties relating to finance. If it was neither of these difficulties, by the time of the additional evidence in early September 2022, SSB experienced alleged concerns about the mental health of ABC: see the Pangraz skeleton argument at [29]. It is to be inferred in one way or another that the difficulties involving SSB would not have been overcome. It should be emphasised that the Court is simply reporting the concerns to the Court of SSB as part of the narrative; in no sense is it finding that the concerns were well founded or that there was a basis for the concerns. That is mentioned because ABC was not before the Court to comment on this and there is no medical evidence to substantiate this.
    1. In respect of the ground that there was no adequate opportunity to respond to the allegations in the email of 3 August 2022, this ground does not go anywhere. On one formulation, it was accepted on behalf of Mr Doyle that there was no application for directions under CPR 35.14. The consequence, it was submitted, was that the evidence ought to have been excluded by the Court. On this basis, the real criticism is not the absence of opportunity to answer, but the putting of the email in evidence. It is understandable that the Judge felt that he ought to draw the communication to the attention of the parties. It might have been preferable if the document had been drawn to the attention of the Judge at an earlier stage, but the question is whether the failure to do so or to give an opportunity to the parties to respond to it over a period of days rather than minutes was a serious procedural or other irregularity which gave rise to injustice: see CPR 52.21(1).
    1. I accept the submission that even if there was an irregularity, it had no effect and therefore was not serious and/or did not cause any injustice. If the email had been returned without more, it is unlikely that it would have been acted upon by ABC. If the Judge had given time to respond, nothing different would have occurred. It is unlikely that there would have been any action on behalf of Mr Doyle: SSB’s activity was provoked by the decision of 19 August 2022. If they had responded, the most that could be expected was the evidence now relied upon in support of the appeal (being the same evidence relied upon in support of the Rowe application).
    1. That evidence has now been considered in detail in and for the purpose of the application in the case of Rowe. In my judgment, that evidence does not affect the outcome of Doyle for the same or substantially the same reasons as set out in detail in the application in the case of Rowe. On the premise that it is allowed in evidence for the purpose of the Doyle appeal, which it has been without objection, it does not affect matters because it shows:
(i) how deep set the problems were in that for many months the crisis of confidence between Pearl and ABC had been known about to Pearl, and then to SSB;
(ii) how inadequate were the inquiries which were made and the steps taken to bring this crisis to the attention of the Court in advance of the hearing of 19 August 2022;
(iii) how a misleading state of affairs was relayed to the Court on 19 August 2022, failing to highlight the crisis, the nature and extent of the delay and the inadequacy of explanations for the situation which had arisen;
(iv) how even when the further evidence was adduced subsequently, there was no adequate evidence of steps taken to replace ABC and a way forward to give confidence to the Court that the problem would be resolved with a new named expert with any or any detailed proposals for dealing with it.
    1. In fact, there was no reasonable excuse for not making an application by the end of May 2022 to provide a substitute report of a different expert with concrete proposals for rectifying the problem. Had this been done, the trial date could have been saved and the obligation to have a joint statement could have been observed. Even if extensions of time had to be granted, that could have been on the basis of proper and reliable information provided to the Court. Instead, there was total disarray, not only giving rise to the trial date being lost, but all happening at the last minute without any concrete proposals how to deal with the case.
    1. Further, it does not appear from the judgment that the Judge approached the case in a significantly different manner than he would have acted if the 3 August email had not been produced. The reasons for this are as follows:
(i) The Judge took on board the fact that ABC had not been paid, and would not act. He did not refer to the other criticisms including ABC being named in cases without his knowledge and submitting reports where he not seen or participated in the creation of the report. If he had taken into account the other matters in the email, it would be expected that he would have referred expressly to this in his judgment.
(ii) In any event, it was already apparent without the email of 3 August 2022 and from information before the lawyers for Mr Doyle that they knew not only that ABC was complaining that he had not been paid, but that Pearl was accused of putting forward reports in ABC’s name without his approval. This was information which ought to have been drawn to the attention of the Court in any event. Further, it was information to which there was no good answer.
    1. On the basis of the above, there is no reason to interfere with the reasoning of HH Judge Carter who had the relevant matters before him without the additional evidence. The conclusion which he reached was available to him and there is no reason to interfere with his exercise of discretion.
    1. If it was necessary for Mr Doyle to answer the email of 3 August 2022, this has been done with the evidence adduced in the case of Rowe and relied upon by Mr Doyle for the purpose of the appeal. As is analysed in great detail in the judgment of HH Judge Khan in the case of Rowe, an analysis of the evidence subsequently adduced does not provide answers to the obvious issues. HH Judge Khan concluded for the reasons set out in the analysis in respect of the Rowe case that (a) the full picture was not disclosed, (b) it was misleading not to disclose it, (c) an application ought to have made been many months earlier, (d) there was no reasonable excuse for the delay, and (e) there was no information before the Court to the effect that any adjournment could or would have been used to obtain a new expert within a reasonable period of time.
    1. For the reasons given by HH Judge Khan in Rowe, none of that made any difference to the outcome of the Rowe application. For the same reasons, the SSB witness evidence would not have made any difference in the case of Doyle.
    1. If and insofar as there has to be a fresh exercise of discretion in the Doyle appeal, it is submitted on behalf of Mr Doyle that the Court ought to exercise its discretion as per the analysis of HH Judge Gosnell in the case of Badar Din. That is to say, it is submitted that the overriding matter was the fact that the client was innocent and that trumped everything.
    1. Exercising my discretion afresh on the particular facts of this case, in my judgment, the numerous factors identified by HH Judge Khan outweigh the alleged overriding factor of an innocent client who has done nothing to contribute to the situation and who has lost the opportunity to present the case. In the end, I have been impressed by the detailed reasoning of the judgment of HH Judge Khan and his balancing exercise between the various factors which he identified on the one part and the alleged overriding factor on the other part. It follows that if this were a case which required a fresh exercise of discretion, I should have exercised it in the same way as did HH Judge Khan. Exercising the discretion afresh, I prefer that detailed analysis to the more broad-brush approach of HH Judge Gosnell, and I would adopt the approach and reasoning of HH Judge Khan. It is said that in the interests of comity that the Court ought to follow the decision of HH Judge Gosnell. The parties have agreed to the cases being considered separately, and the effect of this is that it is possible that different judges will come to different conclusions, and so either there is no notion of comity in this context, or, if there is, I do not find that this is a reason in the circumstances of this case to reach or apply the same conclusion as in Badar Din.
    1. It therefore follows that in my judgment, the decision of HH Judge Carter was not wrong, and nor, if there was a procedural irregularity, was it serious or unjust. If it was, I would have exercised the discretion in such a way as would have given rise to the same result as that of HH Judge Carter. I reject the submission that the approach of HH Judge Gosnell was the “correct” approach, as if there was only one correct approach. It is not for this Court to decide the matter as if this case is an appeal from the decision of HH Judge Gosnell. This Court is only considering whether there are any grounds to interfere with the discretion of the first instance court and to the extent that grounds exist and the discretion has to be exercised afresh, how this appeal court would have exercised its discretion on the material before it. I have indicated in the preceding paragraph how I would exercise my discretion afresh.
    1. It was submitted by Ms Sabben-Clare KC that there was an error in not treating the application as one for relief from sanctions. Whilst HH Judge Carter may not have expressed every aspect of his decision as being about relief from sanctions, it is apparent that the Judge treated it as such: if he did not do so expressly, then on his reasoning, it is apparent that he would have come to the same conclusion. He considered in effect the three elements of the Denton test, namely whether the failure to comply with the directions as regards the provision of a joint statement comprised first a breach which was serious and significant, second that there was no reasonable excuse for it, and third that the justice of the matter was not to allow relief sought arising out of the breach, namely the stay of the action to enable Mr Doyle to address it and the vacation of the trial. As regards the third element, it is apparent from the reasoning at paras. 12 – 14 that he refused to vacate the trial date and to allow further time to resolve matters with the expert because of the following factors, namely:
(i) Mr Howe’s knowledge of the concerns of ABC about payment, and the matters being advanced to the Court in support of additional time not being accurate (the Judgment at [12]),
(ii) he considered “whether it is in furtherance of the overriding objective and fairness to the claimant and the ability to rely upon expert evidence that the matter should be vacated in any event“, and he considered that “it would be wrong and not in furtherance of the overriding objective to vacate the trial for the reasons identified in the judgment” (the Judgment at [13]), and
(iii) he considered that there was a lack of openness in the reasons for the failure to attend the joint meeting and to prepare the joint statement (the Judgment at [14]).
    1. Although not expressed explicitly, a reading of the entirety of the judgment shows that the Judge had in mind the appropriate Denton test for relief from sanctions including the words of CPR 3.9:

On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need – (a) For litigation to be conducted efficiently and at proportionate cost; and (b) To enforce compliance with rules, practice directions and orders.”

    1. If and to the extent that this Court is required to exercise the discretion afresh, this is to be done with the benefit of all the further evidence which was before the Court in the case of Mrs Rowe and which is admitted without objection for the appeal in the Doyle case. Taking into account that evidence and having regard to all the submissions which have been advanced on this appeal, the Court would reach the conclusion that the trial should not be vacated for the reasons set out by HH Judge Carter, but in the light of the bigger picture presented in the subsequent evidence, for the same or substantially the same reasons which were given in the judgment of HH Judge Khan in the case of Rowe case.
    1. If it is necessary in a reconsideration to reason the matter as an application for relief from sanctions, this Court would find that the default was serious and significant and that there was no reasonable excuse for the same. On the third limb, it would be found that although Mr Doyle was not at fault, the combination of the numerous matters which HH Judge Khan took into account in the case of Rowe in the end weighed more heavily. The application was in effect a late application to break a three-day fixture with no information as to how and when the case could be restored, and in circumstances where the problems which had given rise to the need for further directions had been known about to Pearl and SSB for months before the matter was brought to the attention of the Court. When the matter was brought to the attention of the Court so proximately to trial, the information provided to the Court was at best unsatisfactory. In all the circumstances, and doing justice between the parties and taking into account among other things the factors referred to in CPR 3.9(2) and the lack of fault on the part of Mr Doyle and proportionality, the Court would not give relief from sanctions and would not have found that a vacation of the trial date and a stay was appropriate.
    1. In the light of the foregoing, HH Judge Carter did not err in deciding not to vacate the trial in the light of the issues in respect of ABC. He did not need to have permitted Mr Doyle an opportunity to respond to allegations contained in the email of ABC dated 3 August 2022.
    1. That deals with the unamended grounds of appeal. As regards the additional grounds, I find the following:
“The claim should not have been dismissed at the trial on 20 September 2022 without hearing oral testimony from Mr Doyle and the expert for HDI, namely Mr Mancini. The written report of ABC ought to have been allowed in evidence.”
    1. The claim was dismissed without hearing oral testimony and without argument from the parties. At the trial HH Judge Khan heard Mr Doyle’s application dated 2 September 2022 to vacate the trial and stay the claim pending the appeal. Upon the parties agreeing that without oral expert evidence from ABC, Mr Doyle would not succeed in his claim the court ordered by consent to dismiss the claim with costs orders pending the appeal.
    1. The reason for this consent was that it was fanciful on the basis of the facts of this case to assume that there was a real prospect of Mr Doyle succeeding without an expert or to rely on Mr Mancini as an expert. There was no real prospect that he would suddenly recognise that the truth or the true opinion was in favour of Mr Doyle’s case, and contrary to his previously held views.
    1. It therefore followed that the reference to the case of MS v Lincolnshire County Council [2011] EWHC 1032 (Edwards-Stuart J) had no direct application. In that case, the Judge contemplated the possibility of extracts of the expert’s report who was not being called being put to the expert on the other side at trial rather than have summary judgment. In the instant case, there was nothing wrong with the Judge relying on Counsel’s concession, nor was there anything wrong with Counsel’s concession in that it faced up to the inevitable that without live evidence from a reliable expert for Mr Doyle, his case was doomed. There were other reasons. Mr Muir’s evidence had been overtaken and replaced by the order for ABC to replace him. The result is that any cross-examination in a trial would have been without any live expert evidence for Mr Doyle on which to cross-examine, and where such fundamental concerns about ABC had been expressed by SSB to the Court. This submission therefore does not assist: it is based on a course of action not advanced to the Judge, one which contradicted the express concession and with materially different facts between the precedent now relied upon and the instant case.
    1. In respect of the submission that the email of 3 August 2022 of ABC should have been treated in accordance with CPR 35.14, and in the absence of an application ought not to have been allowed into evidence, this has been considered and rejected above.
    1. Other ways of proceeding ought to have been considered given that ABC appeared to be unwilling to give evidence for Mr Doyle at trial. There were no other ways of proceeding without ABC. None were advanced, and the Judges cannot be criticised for not having explored any further way if there was one.
“HH Judge Khan was wrong not to follow the approach of HH Judge Gosnell in his judgment dated 9 September 2022 in Mr Badar Din and Ms Fozia Bashir v Aran Services Limited (Leeds County Court claim number: G67YJ577) by not allowing Mr Doyle further time to appoint a substitute expert, to vacate the trial and to set a new trial timetable.”
    1. At the trial HH Judge Khan heard Mr Doyle’s application dated 2 September 2022 to vacate the trial and stay the claim pending the appeal. Upon the parties agreeing that without oral expert evidence from ABC, Mr Doyle would not succeed in his claim the court ordered by consent to dismiss the claim with costs orders pending the appeal. The Judge was not obliged in the face of the above to maintain the claim. The Judge was entitled to act on that concession. The concession was well made as set out above. The matters set out above are repeated.
(h) Conclusion in Doyle
  1. For all of the above reasons, the appeal in Doyle is dismissed. In addition or in the alternative, I have taken into account the information adduced in the Rowe case which is relied on in the case of Doyle. This reinforces the conclusions in Doyle. If HH Judge Carter should have given a further opportunity to Mr Doyle to deal with the email of 3 August 2022, events as they moved on showed that that was not a serious irregularity nor did it cause prejudice. That was because there was nothing in the email which, when taken into account, led towards a different conclusion. It therefore is the case that the analysis that follows in respect of the case of Mrs Rowe is to be taken into account in the analysis of Doyle too. The analysis is relevant because it is in respect of facts arising out of the same or substantially the same matters.