Foskett J considered various case management issues relating to this class action. One of these was that the claimants wished to have permission to substitute two of their experts. One of the claimants' current experts is approaching 80: the judge said that there was no need for evidence as to his capacity to be given. The judge also noted that whilst the substitution of experts is unusual, it is not unknown: "Obviously, it is important for the court not to sanction pure "expert shopping", but I do not detect that in the present case. For whatever reason, it is now five years since the case was due to be heard and it is not surprising that some changes are effectively being forced on the Claimants' side".
However, the judge cautioned against the new experts simply repeating, parrot-fashion, what was said in earlier reports. He refused to comment on the status of the previous reports, saying that that would be a matter for the trial judge. As to costs, it would be unreasonable for the experts (or their lawyers) to simply charge on an hourly basis where much of the ground had already been covered. Before sanctioning the proposed substitutions, though, the judge asked the proposed experts to indicate how many hours they consider it would take them to prepare their reports.
Another issue which arose was whether the claimants had given sufficient information about their funding and ATE insurance arrangements. The judge referred, with apparent approval, to the earlier decisions of West London Pipeline v Total (see Weekly Update 24/08) and XYZ v Various Companies (see Weekly Update 3/13), in which it was held that the court has no power to order disclosure of a defendant's insurance arrangements. Those two decisions conflicted with an earlier decision (Harcourt v Griffin (see Weekly Update 32/07), not referred to in this case, in which it was held that such disclosure could be compelled. In XYZ, the judge had ordered the defendant to provide a witness statement setting out whether it had adequate insurance in place. In this case, Foskett J was prepared to "take at face value" a statement by the claimant's solicitor, to which a statement of truth had been appended, that there was sufficient funding in place.