DECISION TO DISMISS CLAIM BECAUSE OF ABSENCE OF EXPERT EVIDENCE UPHELD ON APPEAL:

November 1, 2023 · by · in Appeals, Expert evidence, Experts

We are looking at the second part of the decision in  Doyle v HDI Global Specialty SE [2023] EWHC 2722 (KB). The post yesterday looked at the decision in Doyle. Here we look at the judgment in Rowe, the other case being considered.  The decision that the action should be struck out because of the absence of expert evidence was upheld on appeal.

“This was not a case about expert shopping. The Judgment cannot be faulted for not making findings about expert shopping. This was a case about the breakdown of a relationship between Pearl and the expert, and about the failure of the solicitors to address it many months earlier.”

THE CASE

The claimant brought an action for damages alleged to be caused by the defective installation of cavity wall insulation.   The claimant instructed an expert “ABC”. An initial report was sent and then a further report which stated that parts of an earlier report had been “templated” by a third party.

“…  on 23 June 2022 a further report of ABC dated 15 June 2022 was served, explaining that he wished to amend the costings set out in the report of January which had been served without his having the opportunity to review the evidence on site. He said that it was templated by a third party (apparently Pearl) and that he reduced the remediation costs to £32,204.92. The Judge then made reference to the email of ABC in the Doyle matter dated 3 August 2022, referred to above. On 30 August 2022, HDI made an application seeking that the evidence of ABC be struck out and the order permitting him to give evidence be revoked. The order made on the application is set out at paragraph 79 above.”

THE ORDER MADE AT FIRST INSTANCE

The judge at first instance reviewed the matter in considerable detail and then gave judgment for the defendant.  The claimant appealed against that decision. That appeal was unsuccessful.

THE JUDGMENT ON APPEAL

(b) The Judgment of HH Judge Khan in Rowe
    1. The Judgment then contained a detailed section at paras.20-45 about events off camera largely between Pearl, SSB and ABC. The section contains a lengthy summary of the evidence before the Court. It has not been the subject of grounds of appeal, and the substance of it has not been challenged. This judgment could have been made lengthier still by quoting it in full. It suffices to provide a summary of these paragraphs. The section starts with a surveyor Mr Muir being originally retained for a packaged claim and becoming unavailable following his relocation to Saudi Arabia. In late 2021, Pearl began negotiating terms with ABC, another surveyor, and he began to familiarise himself with the issues in relation to CWI cases. He inspected up to forty properties on what he described as the introduction by Pearl.
    1. According to ABC, he only became aware in March 2022 that reports were required for “litigated cases” that he would be a “replacement name”. According to Miss Crabtree, when SSB were required to nominate an expert in connection with the CWI claim, it would email Pearl to identify such expert and Pearl responded, providing the name of ABC. Various meetings took place on 22 February 2022 between SSB representatives and ABC. It was then that Miss Allen became aware that, without the knowledge of a director of SSB, ABC had been asked “not to consider or amend the Costing Schedules that were included in the earlier reports of Mr Muir”. According to Miss Flynn, the relationship between ABC and Pearl broke down in March 2022, but Pearl continued to nominate ABC as expert.
    1. On 26 April 2022, ABC sent an email to Miss Flynn and Miss Allen of SSB, saying that he had terminated his involvement with Pearl on advice from RICS lawyers. He referred to his clear instructions not to alter the costings prepared by Pearl’s previous expert. He said that he had not measured the more than forty properties which he had seen and that he had not surveyed them. He said that having engaged with experts for the defendants, he could see that in most cases the costings were too high, and in some cases, more than double the true value of the property. He saw the costings after the event which had generally not been shared with him, so that he could not and did not add any verification to the costings when engaged in joint expert meetings or questions from the defendant. A possible solution was for him to liaise directly with SSB, to get enough information about each property to undertake a desk-based exercise and update the costings. This might take 2-3 hours per property at an hourly rate of £225 per hour. Pearl had advised him that they had no finance in place, and he had enough grounds in any event not to work for Pearl.
    1. There was a discussion on 29 April 2022 between Miss Flynn, Miss Allen and ABC at which the same ground was gone over in which SSB was expecting Pearl to cover ABC’s costs, and ABC said “No. Explain why”. On 4 May 2022, ABC sent to SSB a letter of engagement with terms and conditions, but said that until this was signed and returned to him, “in line with RICS regulations”, he would not be able to act. On 6 May 2022, he said that his attempts to review previous reports had met with silence.
    1. There was an email from ABC to SSB dated 27 May 2022 which included the following, namely “I consider the reports that I have seen to represent exaggerated opinion with regard to damage and condition of the property. This is evidenced where my notes are included in that they conflict with the opinion stated in the main body of the report I consider the costings to be exaggerated in almost all cases.” The email said more than this, but this is sufficient for the purpose of this judgment. Of this, HH Judge Khan in his judgment at [93] said that it must have been “abundantly apparent” that an application to court was needed because “A competent solicitor conducting litigation efficiently would…have concluded that ABC needed to be replaced because he was unreliable [or] realised the impact which inaccurate and unjustified reports would have had on a client’s claim for compensation.”. There is no appeal against this conclusion nor any challenge at all to it.
    1. There were emails in June 2022 which evidenced that SSB was looking for other surveyors. On 28 July 2022, ABC sent an email to Mr Mancini to explain why he was not able to attend the joint discussion scheduled to take place on 2 August 2022 as follows:
“Unfortunately, SSB are now telling me they have no money to pay my long overdue invoices until the end of September. They will ‘try’ and pay in 2 weeks time. I’ve advise (sic) them that even though I have a duty to the tribunal/court I’m forced to withdraw my services as I simply cannot work for free as I don’t have the resources. I’ve given them the RICS practise statement as well. It’s really sad, but I’ve now got no choice. It’s putting me through the ringer in these last few months.”
    1. In his Judgment at [41], HH Judge Khan said the following:
“Mr Bower provides some evidence (without providing particulars) as to other events off camera. He refers to his knowledge of a dispute between ABC and Pearl but explains that this was not “a valid reason for SSB to pay him for the replacement report that Pearl agreed to swap out.” He also claims knowledge of the fact “Pearl informed me that they had in fact paid ABC for all works completed despite ABC claiming this is incorrect”. Mr Bower also explains why SSB was unable to agree any terms with ABC because ABC “continued to change as he sent revised versions through to us with significant cost increases and a reduction of liability cover.””
    1. Despite the above, according to the evidence of Mr Bower, it appeared that ABC had agreed to a more limited role. It was not explained whether this included the case of Mrs Rowe. He would continue to work on 26 cases where his report had been filed and claims were subject to court deadlines for joint statements etc. Mr Bower referred to an assumption without explaining whose assumption it was or why the assumption was made that the costs of the work would be included in the fee structure discussions. Mr Bower did speak to ABC to confirm that payment would be honoured if he were to continue to act as the expert. There was similar uncertainty in a different case in a statement of Margrave in a case called Brothers where there was an unspecific reference to discussions having taken place with senior managers and directors who had advised that ABC was on board and willing to carry out his duties on the claim. Here too, this is very unspecific, and there was no evidence to deal with those documents which indicated that ABC was not on board. Further, this evidence does not sit with evidence of Alexander Howe, a litigation executive of SSB who at [45] of his statement referred to ABC confirming to directors of SSB that he was unable to assist as he had insufficient capacity. At [56], it was stated that ABC could not cope with the volume of work and property management claims. At [81], there was reference to ABC being unwilling and unable to act as expert.
    1. Mr Brooke referred in evidence to difficulties with experts, including ill health of two of them, the relocation of a third (presumably Mr Muir) and a breakdown of relations between a fourth expert and the agency instructing him (presumably ABC and Pearl). He said that SSB was looking for existing and new surveyor agencies with a view to identifying additional experts for 8,000 live claims. The negotiations for a new agency might not be completed until December 2022 at the earliest. A reasonable time was required to find an expert with capacity to act in their case “unless the Court allowed a reasonable period of time for the solicitors to resolve these issues a vast swathe or claims would fail through no fault of the claimant or their legal representatives.” This would give rise to a windfall for the insurers of the installation companies.
    1. Mr Chellew, a surveyor, also provided a witness statement stating that only a small number of surveyors would have the appropriate skill and training and a willingness to undertake the role of expert in such claims.

 

THE GROUNDS OF APPEAL

 

(c) Grounds of appeal in Rowe

    1. Mrs Rowe’s grounds were as follows:

(i) the Judge erred in summarily dismissing the claim in the absence of an application for summary judgment or strike out, without giving her prior notice or an opportunity to have the order set aside, varied or stayed and/or the decision to dismiss was draconian, disproportionate and unfair.

(ii) Having rejected the application for permission to have a new expert witness, the Judge was wrong to conclude that the claim was bound to fail in the absence of an admission or a concession to that effect. The Judge should have allowed the claim to proceed with Mr Mancini as a single expert and/or left it to the trial judge to decide whether and to what extent (a) Mr Muir’s report could be relied on at trial and/or (b) cross-examination of Mr Mancini could proceed.

(iii) The decision to dismiss the application of Mrs Rowe for permission to substitute a new expert witness for ABC was flawed and unsafe.

THE DECISION IN ROWE: APPEAL DISMISSED

(e) Discussion in Rowe
    1. The case involves a combination of case management issues and the exercise of a discretion. It is particularly important because it concerns the ability of Ms Rowe to pursue her claim. There are different, but related, facets to this. First, if and on the basis that ABC was no longer a willing witness or having him was no longer a viable option, she required permission to substitute the evidence of a different expert for ABC. Second, on the basis that another witness was to give evidence, the trial date would have to be broken and an adjournment of months was required. Third, in order not to lose everything, if Mrs Rowe could not have her expert, she would have to have the opportunity to give evidence and through her counsel cross-examining the expert for HDI (Mr Mancini) rather than have the case struck out. Although these were case management decisions involving exercises of discretion, they were fundamental to the continuation of the trial and the ability of Mrs Rowe to present her case, who was found to be blameless: see the Judgment of HH Judge Khan at [97].
    1. It is also to be borne in mind that the Rowe case is a rehearing of an application for permission to appeal. Mrs Justice Heather Williams refused the application on February 2023. It is not a review of her decision, but her considerations can be taken into account. She said the following among other things:

“3. It is logical to consider the three grounds of appeal in reverse order. Ground 3 relates to the refusal to permit the Appellant to instruct an alternative expert (with the proceedings stayed to enable this to take place). Grounds 2 concerns the decision that absent the expert evidence the claim was bound to fail and Ground 1 the consequential decision to dismiss the claim.

4. I do not consider that the grounds of appeal disclose a real prospect of success and nor is there any other compelling reason for granting permission to appeal.

5. Ground 3 asserts that the Judge’s refusal to permit the Appellant to substitute her expert was flawed in principle or unsafe. The decision was a permissible exercise of the Judge’s case management discretion. He identified a number of reasons why he arrived at his conclusion. However, the skeleton argument fails to engage with the majority of factors that the Judge relied upon, in particular that: insufficient detail was provided as to steps taken to find an alternative expert (paras 82 and 85); there was a potential lack of candour (paras 84, 86 –88); there had been unexplained delay in making the application (paras 91 – 94); and granting the application would significantly delay the progress of the claim (paras 95 – 96). The Judge did bear in mind that the Appellant herself was blameless but held that the other matters he had identified outweighed this feature (para 97). The Judge took into account relevant factors. He addressed the authorities relied upon by the Appellant at para 79. The authorities that the Appellant cites in the skeleton argument in relation to expert shopping are not on point. The judge did not find that this was an expert shopping case; rather he found that the combined effect of the factors he identified strongly favoured refusing the application.

6. Ground 2 complains that the Judge then went on to find that, absent a new expert’s report, the claim was bound to fail. However, this was the very submission that the Appellant’s counsel had made to him (paras 47 and 53). It is said that the Judge should have considered appointing the Respondent’s expert, Mr Mancini, as a joint expert and/or recognised that the Appellant could rely upon cross-examining Mr Mancini at the trial. I do not consider this is an arguable error when no such proposals were made to the Judge and para 53 records that the Appellant’s counsel positively submitted that the evidential position could not be cured by putting questions to Mr Mancini.

7. As the Judge legitimately came to the conclusion that absent a new expert, the claim was bound to fail, it is not arguable that his decision to dismiss the claim was unjust or contrary to the overriding objective (Ground 1).”

    1. Considering the matter afresh on the question of permission to appeal (and if granted considering the appeal against the decision of HH Judge Khan as an appellate tribunal), I have had regard to the matters in the detailed oral and written submissions. The judgment of HH Judge Khan was the product of detailed consideration and analysis.
    1. It is submitted that the decision on 16 September 2022 at the first hearing of the PTR to revoke the permission to adduce the evidence of ABC was wrong. I am satisfied the Judge did not err in this regard. By this stage, the confidence had broken down between ABC and Pearl and between SSB and ABC. There was no reasonable basis upon which to continue to permit ABC to be used at this stage, and the Judge was entitled to make such an order which was in the face of all the evidence to this effect. The evidence provided about the discussions between SSB and ABC were not definitive about any basis for ABC continuing as an expert and did not refute the documents indicating that he would not continue to work. Against the background of the evidence that ABC had placed before the Court about how the special damages were included in his report without his consent, about the history of non-payment of his fees as described in the email of 28 July 2022 and in the email of 3 August 2022 and the concerns of SSB about the mental health of ABC (as particularly noted at [14] of a witness statement of Wesley Bower of SSB), there is no basis for challenge of the decision of 16 September 2022. What remained for adjudication was the possibility of affording to Mrs Rowe the opportunity to have an adjournment of the trial and instruct a substitute expert. That was decided at the second part of the PTR of 29 September 2022.
    1. In respect of the decision of 29 September 2022, I am satisfied that HH Judge Khan balanced on the one hand the devastating consequence for Mrs Rowe if he were not to exercise his discretion in her favour: see the Judgment at [97]. He reached the decision that the other factors outweighed this.
    1. The Judge took into account a number of factors in deciding to refuse an application for an adjournment and to give an opportunity for the instruction of another expert in the knowledge that this deprived Mrs Rowe of her ability to make the claim at trial. These factors outweighed in the judgment of the Judge, which was unexceptionable, the fact that Mrs Rowe had not brought this situation upon herself. The relevant factors included the following: First, there was no full explanation as to why the application was being made so close to the trial date. The chronological account was full of gaps and did not provide to the Court the detail that was required. It is right to say that there is now before the Court on the appeal a much fuller chronology than was placed before the Judge, but this does not excuse the nature and extent of the delay.
    1. Second, the Judge considered in great detail such documents as were placed before him relevant to the chronology. It was apparent from the documents that the problems in respect of the evidence of ABC were in existence from early 2022. By way of the briefest summary:

(i) When ABC’s written report was served on 28 January 2022, it was served without his having approved the amounts in respect of special damage. This was said to have been at the insistence of Pearl. This was known to Miss Allen of SSB (not a director) by 22 February 2022.

(ii) In March 2022, the relationship between ABC and Pearl had fallen apart, but Pearl continued to nominate him as an expert. This was known to SSB through Miss Flynn and Miss Allen as a result of an email of ABC of 26 April 2022, which stated that he had not costed out any of the properties which he inspected, and identifying that it would be an expensive exercise for this to take place. Communications continued to this effect throughout May 2022.

(iii) It therefore followed that by May 2022, ABC could not endorse his reports and that his relationship with Pearl had fractured irretrievably. It ought to have been apparent to SSB that ABC needed to be replaced: see paragraph 88 above. In June, SSB was looking for other experts, but without success.

    1. It follows from the foregoing that the problems did not arise with the email of ABC to the Court of 3 August 2022. The problems had existed for months, and SSB did not bring to the attention of the Court in May 2022 or at any stage until after HDI issued its application in Doyle in August 2022 the nature and extent of the problems.
    1. Third, far from addressing these problems fully and frankly, there was put before the Court evidence of Mr Pemberton which referred to attempts to locate and instruct alternative experts. Although experts were located, as the Judge pointed out at [82] of his judgment, there was no explanation of whether the experts located had capacity to prepare a report for Mrs Rowe, let alone if they were asked. There was no explanation as to why Mr Chellew had not been asked to prepare a report for Mrs Rowe. At [83] of the Judgment, there was summarised evidence of Mr Brooke looking for surveying agencies without giving evidence of the dates of his looking for agencies. Likewise, Mr Bower who referred to ABC continuing to work on a number of cases and on the joint statement did not condescend on any level of detail.
    1. Fourth, the Judge accepted that SSB had shown a lack of candour with the Court. Bearing in mind that Miss Allen knew about the position from 22 February 2022, it was unlikely that SSB (through Miss Flynn) did not have knowledge until May 2022: see the Judgment at [86]. The Judge felt that he had to treat the evidence of SSB’s representatives with utmost caution. An example was the statement of ABC informing the directors of SSB on 13 June 2022 that he had “insufficient capacity”, but the events from 22 February 2022 indicated that the problems were much more deep-rooted: see the Judgment at [88]. There was no attempt to provide an account of when ABC had been instructed not to update Mr Muir’s costs schedules: see the Judgment at [90].
    1. Fifth, whilst there was a period of grace after 22 February 2022 that could be allowed before finding out if an alternative expert was required, by at latest, the end of May 2022, an application ought to have been made on behalf of Mrs Rowe to the Court. By that time, it was apparent that ABC did not intend to carry out further work and the reports were “incorrect, misleading and contained financial claims that were overstated“: see the Judgment at [92]. At [93], the Judge said that if this was not apparent before then, the email of 27 May 2022 of ABC showed that an application was required, whether that which was related by ABC was true or not true. The Judge, as he was entitled to say, said that the delay until September 2022 by which time the trial date was jeopardised, was a matter that he was entitled to put into the balance.
    1. In short, the Judge considered relevant factors and put them into the balance. On the one hand was the blamelessness of Mrs Rowe, but on the other side was the following, namely:

(i) delay of many months in making the application, which ought to have been made at least three months earlier than it was done;

(ii) the fact that the trial date was being lost and the potential waste of up to three days of judicial time;

(iii) a lack of candour in the way in which the application was presented;

(iv) the fact that even in September 2022, there was no apparent solution by the identification of a particular expert ready to assist;

(v) the application and the evidence in support did not give the Court any confidence that Mrs Rowe would be able to produce an expert’s report within the periods identified: see the Judgment at [96].

    1. On behalf of Mrs Rowe, there is reliance on the Court of Appeal case of Bowden v Homerton University Hospital NHS Trust [2012] EWCA Civ 245, in some cases, an overriding factor may be the dilemma of being let down by an expert. The Judge balanced that factor against other factors. He came to the decision that other factors cumulatively outweighed that consideration and led to the result in the instant case. This was not a decision based on previous defaults in the case, but upon a whole variety of factors which were identified in the Judgment and summarised above.
    1. This was an exercise of discretion of the Judge. The Judge identified relevant matters, and did not fail to identify other relevant matters. He appropriately weighed them. He reached a decision which cannot be said to have exceeded the generous ambit of his discretion in refusing to vacate the trial, grant a stay or in consequence permit Mrs Rowe to rely upon a new expert report. The Judge was not bound to follow the reasoning in the case of Badar Din and he was entitled for all the reasons which he gave to reach the conclusion which he did. As I indicated above, if I were to exercise the discretion afresh, I should follow that reasoning rather than that contained in Badar Din. There is no basis for the Court to interfere with the decision of HH Judge Khan, or to interfered with the exercise of discretion of the Judge.
    1. On behalf of Mrs Rowe, various authorities were relied upon. They were considered by the Judge. Consideration of them does not identify any error of law. It is not necessary to go through this in great detail, because they all turn on their own facts.
    1. The case of Edwards-Tubb v JD Wetherspoon PLC [2011] 1 WLR 1373 is not a case of particular relevance to the facts of this case. It refers to when there is good reason to instruct an expert, and whether the first expert’s report must be disclosed. In that case, it was about the change of an expert occurring pre-action. This was a very different case from a change immediately prior to the trial, where the trial date would be lost, where there were no arrangements in place for the instruction of a different expert, where there was a stay sought of uncertain duration and where there was no reasonable excuse for the difficulties with the expert not to have been addressed and brought to the attention of the Court months earlier.
    1. There were other cases about expert shopping. This was not a case about expert shopping. The Judgment cannot be faulted for not making findings about expert shopping. This was a case about the breakdown of a relationship between Pearl and the expert, and about the failure of the solicitors to address it many months earlier. It therefore follows that lengthy citation of authority about expert shopping does not advance the case: see the extracts from Adams v Allen & Overy [2013] EWHC 4735 (Ch) and Murray v Devenish [2017] EWCA Civ 1016 at [16].
    1. There is even criticism of the Judge for failing to address five other authorities which were cited to him. These cases referred to at paras 53-59 of the skeleton argument on behalf of Mrs Rowe dated 6 January 2023 are Vasiliou v Hajigeogiou [2005] 1 WLR 2195; BMG (Mansfield) Ltd v Galliford Try Construction Ltd. [2014] CP Rep 3, [2017] TCLR 4 (TCC); Beck v Ministry of Defence [2005] 1 WLR 2206; Condori Vilca v Xstrata Limited [2017] BLR 460, 2017 Med LR 457 and Allen Tod Architecture Ltd v Capita Property and Infrastructure Ltd [2016] BLR 592, 168 Con LR 201. The Judge was criticised for not referring to these cases in his Judgment. There is no basis for this criticism. First, the cases do not advance the case, but concern the particular facts of the cases and/or are about the replacement of one expert for another, the dangers of expert shopping and when the report of the replaced expert must be disclosed. They do not reveal any particular principle of application to the instant case which the Judge failed to apply. Unsurprisingly, they do not involve the particular facts in this case and the combination of factors which have led to the Court’s exercise of discretion and result. Second, the detailed nature of the judgment is such that there is no reason to believe that the Judge did not consider these cases, and come to the decision not to refer to them because it was unnecessary to do so in relation to the instant case.
    1. On this basis, there is no reason for the Court to interfere with decision of the Judge. The question then arises as to whether the Court ought to refuse permission in the same way as Mrs Justice Heather Williams did. I have come to the conclusion that there would be an artificiality because of the nature of the rolled-up hearing which was not contemplated at the time of the order of Heather Williams J. The reason why a rolled-up hearing was allowed was because there was a close relationship between the Rowe case and the Doyle case. That has given rise to detailed submissions to be able to consider the substantive appeal if permission is given. The correct analysis is that the close connection (with an appeal where permission had been granted by Mrs Justice Hill) is that there is some other compelling reason to grant permission to appeal in the Rowe case. That is that the full appeal has in effect been heard. It would be artificial in those circumstances in this case, where no short cut has been adopted, to refuse permission. Permission is not granted on the basis of a real prospect of success but for the above mentioned other compelling reason. In the event, the appeal is dismissed because there was nothing wrong about the decision of the Judge nor was there any serious procedural or other irregularity that causes injustice.
    1. The evidence did not provide any detail as to the steps taken or the fact that in reality no alternative expert had been located who would take instructions. There was a statement of Mr Chellew who identified the difficulties of instructing alternative experts, but he did not explain why he would not give evidence. The unsatisfactory nature of the evidence was the subject of adverse comment from the Judge at [82] of his judgment.
    1. For all these reasons, the Judge was entitled to find that the case should not be stayed and there should not be permission to substitute the expert at this stage that would lead to the vacation of the trial date.
    1. I do not accept that the Judge was wrong in his decision to give judgment on a summary basis or strike out the claim as a consequence of not allowing Mrs Rowe to have substitute expert evidence. This followed from the following matters. Contrary to Ground 2, absent an expert’s report, the claim was bound to fail. This was conceded on behalf of Mrs Rowe, and the concession was properly and correctly made. This submission of Mr Bowden on behalf of Mrs Rowe is recorded in the Judgment of HH Judge Khan at [47]. Further, at [53] of the Judgment, the Judge went on to say that without expert evidence, the lacuna could not be cured by putting questions to Mr Mancini. There was no reason to believe that there was a basis for cross-examination which might lead to the evidence of Mr Mancini being undermined. The Judge was entitled to reach the view that it would be hopeless as well as contrary to the basis on which Mrs Rowe’s case had been properly and sensibly put to allow the case to continue once Mrs Rowe no longer had a positive case of her own expert to put to Mr Mancini. It follows that in these circumstances, the Judge was correct to bring the case to an end, and nothing advanced by Mr Bowden or on this appeal indicates any error on the Judge’s part in acting as he did at [81] above of this Judgment.

“Counsel for Mrs Rowe adopted expressly the conclusion of DJ Bond in the case of Hussain v WIC Europe that “it is plainly not a case where the deficiency could be remedied by counsel putting questions to the defendants expert based on Mr Muir’s preliminary report”. It was therefore accepted expressly that the approach now contended for would not be satisfactory. There is no basis to complain that the Judge should have gone behind this and rejected the submission of Counsel as being unfair to his client.”

    1. The suggestion that the Judge erred in acting upon the concession of Counsel is not well made. It is said that there ought to have been days of notice before proceeding to strike out or to give summary judgment pursuant to CPR 3.3(3)(b) or that there ought to have been liberty to apply to set aside the order pursuant to CPR 3.3(4). This does not assist Mrs Rowe in that the provision of notice or an application to set aside would not have led to a different order. Further, this was not an order where notice was required because it occurred in the course of a hearing where the parties were represented before the Judge. If there was a basis to set aside the order, it could have been exercised, but it would not have made any difference to the order.
    1. It is fanciful on the basis of the facts of this case to assume that there was a real prospect of Mrs Rowe 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 Mrs Rowe’s case, and contrary to his previously held views. It is because of this that Mr Bowden was right to emphasise how important it was to Mrs Rowe’s case that the Court exercised its discretion in favour of postponing the trial and giving an opportunity to find a new expert. The decision not to give that opportunity despite the consequences for Mrs Rowe lies at the heart of this case. This consequence gave rise to such a detailed thought process on the part of the Judge in order to justify a decision of this magnitude. Contrary to the argument on behalf of Mrs Rowe, the Judge did not usurp the role of the trial judge, but followed through the consequences of not staying the case or permitting the evidence of ABC to be deployed to the conclusion that there was no reason to allow the case to go to trial. The basis of the submissions on behalf of Mrs Rowe that her case depended on having a positive case through her own expert could not be turned on its head when she had not been permitted to rely on the evidence before the Court and to have an adjournment to seek new evidence. In any event, the submission that in a speculative way the case could be allowed to go to trial was pointless in the sense that there was no reason to believe that HDI’s case and Mr Mancini’s evidence could be undermined. The Judge was therefore right to deal in accordance with the overriding objective to give judgment at that stage.
    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 Mrs Rowe, her case was doomed.
    1. There were other reasons. Mr Muir’s evidence had been overtaken and replaced by the order for ABC to replace him. The order in respect of ABC’s evidence had been revoked. The result is that any cross-examination in a trial would have been without any expert evidence for Mrs Rowe on which to cross-examine. 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. Reliance was placed on a case of ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2004] CP Rep 9. This case does not assist the analysis. It was about the circumstances in a clinical negligence claim when it was appropriate to permit a claimant to have a second expert. It does not provide assistance in respect of the very different facts of the instant case.
(f) Conclusion in Rowe
    1. It therefore follows for all these reasons, for the reasons set out above, none of the grounds and formulations on behalf Mrs Rowe are accepted. The Court has also relied on the reasons set out in the decision of Mrs Justice Heather Williams, most of which is relied at [95] above. The Court has also relied on the detailed reasoning in the reserved Judgment of HH Judge Khan and has rejected the criticisms of the same. Although the appeals have been considered separately, matters in each appeal inform as to the other appeal. Despite giving permission to appeal for the other compelling reason identified in [112] above of this Judgment, the appeal is dismissed.
VIII Overall conclusion
  1. It follows that both appeals are dismissed. The Court requests that the parties draw up orders to reflect the result. The Court is grateful for the great assistance from Counsel and for the very thorough and able presentation of the written and oral arguments.
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