Judge refuses permission for expert evidence

CPR r35.1 imposes a duty on the court to restrict expert evidence to that which is reasonably required to resolve the proceedings. In British Airways v Spencer Warren J held that permission should be granted for expert evidence if it is either necessary or reasonably required, but not if it will just be of assistance to the court.

In this case, Chief Master Marsh agreed that this approach was useful, but added that there was an anterior issue: is CPR r35 engaged at all? In this case, he found that one area of expert evidence proposed by the defendants was not really expert evidence because "it is not a matter of opinion and is not didactic evidence that neither need be contentious nor require explanation from an expert". In any event, he doubted if expert evidence was reasonably required: the parties should instead engage with each other to establish "whether there are genuine fault lines between them".

Chief Master Marsh also highlighted the problem of the court not being given a sufficient description of the proposed evidence "Had the application been supported with evidence about the identity of the likely individuals who will be introduced as experts, their own experience and the sort of evidence that they might give it would have been better founded because it would have been possible to identify evidence that might properly be characterised as expert evidence".

COMMENT: Parties will often wish to seek permission without naming a specific expert, because they will not then need permission to instruct another expert if they decide that they no longer wish to rely on the evidence of the first expert. However, this case highlights the danger that a judge might conclude that it is difficult to give permission in advance without knowing the identity of the proposed expert.