Mondial Assistance (UK) Ltd v Bridgewater Properties Ltd [2016] EWCA 999 (Ch)

Opinions from properly qualified experts were prima facie admissible and would only require the Court’s permission before being adduced if the evidence was from a person “instructed to prepare expert evidence for the purpose of proceedings”.

Mondial, the tenant had applied for a new lease of office premises and whilst the landlord, Bridgewater, did not oppose the grant of a new lease the parties did not agree on its terms, including rent and the inclusion of a landlord’s development break option.

The property had been constructed in the 1980s and the exterior curtain walling and the plant and machinery were nearing the end of their economic life. Mondial commissioned various consultants to prepare reports on the walling, lift and mechanical and electrical aspects of the premises. These reports together with a report bringing all the costings from them together were found as appendices to the expert valuer’s report on rent.

Bridgewater claimed that as the Court’s permission had not been given to adduce these expert reports under Part 35 of the procedural rules (“CPR”) they should be deleted from the valuer’s report. The Court initially agreed saying that the tenant was trying to bring in expert evidence “by the back door”.

On appeal that decision was set aside and consideration of the issues of admissibility was adjourned until the first day of the trial which was imminent. In reaching its decision the Court of Appeal highlighted that in order to fall within the ambit of CPR 35 the reports needed to be evidence of “a person who had been instructed to give or prepare expert evidence for the purpose of proceedings”. If that were not the case it would be necessary to look at the Civil Evidence Acts of 1972 (s3) and 1995 (s1(1)) whose combined effect was that the opinion of a properly qualified expert was prima facie admissible. The issue then was what weight to give to the evidence.

Key points

- Crucial to this issue was whether or not the expert had been instructed to prepare evidence for the purpose of proceedings. In this case it was clear that the curtain wall consultant was not instructed for the purpose of the proceedings. Whilst the other consultants appeared to have been so instructed the judge’s decision was found in any event to be flawed and set aside.