Costs consequences of failing to discuss expert evidence with other side

The claimants applied to court for an order revoking permission for the defendants to rely on certain expert evidence, and for sequential exchange of expert reports. At the hearing, the claimants did not press for this relief, though, and instead the parties were ordered to engage in discussions about expert evidence, and to meet with their experts in order to try to agree the scope of the evidence and prepare a joint statement.

Chief Master Marsh held that an order for costs should be made in favour of the claimants. An application to court had been necessitated by a lack of engagement by the defendants. It was held that "In almost every case where expert evidence is permitted by exchange of reports it is desirable for there to be discussion about the scope of the issues under consideration…Whether the discussion is best held between the lawyers or between the experts (or both) will depend upon the case and the issues which arise. It is clear, however, that in every case the parties must co-operate in the process of producing expert evidence with a view to ensuring, as far as possible that the exercise is properly focussed. The result should be that the reports are shorter and deal only with the core issues upon which expert evidence is required…Whether the discussion is best held between the lawyers or between the experts (or both) will depend upon the case and the issues which arise. It is clear, however, that in every case the parties must co-operate in the process of producing expert evidence with a view to ensuring, as far as possible that the exercise is properly focussed. The result should be that the reports are shorter and deal only with the core issues upon which expert evidence is required".

Although the original court order hadn't required the parties to engage in active discussion, the defendants had failed to comply with their to duty help the court to further the overriding objective of enabling the court to deal with cases justly and at proportionate cost. Their conduct could be taken into account when considering the costs of the application.