Court considers whether expert evidence is necessary/adjourning trial to allow disclosure process more time

Two procedural issues fell to be considered by Hildyard J and Chief Master Marsh in this case:

  1. Whether the defendants should be given permission to call an additional expert. Having reviewed the applicable test to be applied (which included referring to the three-stage test proposed by Warren J inBritish Airways v Spencer (see Weekly Update 31/15 for further details)), it was concluded that the defendants had not justified the admission of the disputed evidence. However, it was further held that the defendants should be permitted to renew their application if they wished to do so after having first given their existing experts a further list of questions on the relevant issue. Although it was appreciated that such an approach was not favoured by either party, it was also noted that this approach "is becoming a not unusual recourse in very complex litigation and before the contours of the case are more clearly defined and the other more undisputedly necessary expert evidence is available".
  2. Whether the trial date should be adjourned because of difficulties with the defendants' disclosure exercise (which they said had exceeded their expectations as to scale and the amount of time needed). Under the CPR, an exceptionally strong justification is required if the application will lead to the loss of a fixed trial date. The judge was also critical of the defendants' approach to disclosure. There had been no sufficiently early attempt to grasp what would be involved, "vast armies" had been used without any sufficient focus by senior members within the defendants' organisation and so there had been too much emphasis on a "bottom up" approach to disclosure. Furthermore, the defendants had left the process of identification and collation of its documentation to its solicitors and had not been sufficiently involved in assisting the process.

However, it was concluded (with reluctance) that there would be a risk of unfairness to the defendants if a short adjournment of three months was not allowed. It was stated that: "though the inevitability that costs rise the longer a case continues is also to be considered, in the end it is not the start but the end date which is of prime importance. A more compressed timetable may lead to a longer or disorganised trial".