The recent High Court decision of Clarke v Barclays Bank PLC & Lamberts Surveyors Ltd [1] concerned whether Mr Stephen Clarke (the Claimant) could rely upon a second expert report. The Claimant had already served the report of his original expert, but had only informed the parties six months later that his original expert had withdrawn from the case.

The Facts

Proceedings were commenced in November 2010 concerning a claim against Barclays Bank (the Bank), the Claimant's lender, for having sold the mortgaged property at a gross undervalue. The Bank joined Lamberts Surveyors Limited (the Surveyor) in as a third party, as the Bank claimed to rely upon the Surveyor's advice. The Claimant had spent £250,000 converting the property into a state-of-the-art recording studio and the property should have been marketed as such not as a development opportunity, according to the Claimant. However, the Bank sold the property in May 2005 for just under £250,000.

In accordance with the Court's directions, both parties had served expert evidence. However, on 3 May 2013 the Claimant's original expert, Mr Dall, informed the Claimant that he could no longer continue as the Claimant's expert (having retired as a RICS member). Despite this development, the Claimant did not inform the parties until the end of November 2013, by which time the Claimant had a new expert in place, Mr Yates. Steps were taken to arrange a mediation, but this never materialised.

On 20 January 2014 the Claimant issued an application seeking permission to rely upon Mr Yates' report. The application was determined at a hearing before the Deputy Master on 12 February 2014 who granted permission to the Claimant to rely upon Mr Yates' report. Subsequently, the Bank and the Surveyor applied for an urgent appeal against the Deputy Master's decision in respect of what expert evidence the Claimant was entitled to rely upon. The appeal was heard on 25 February 2014.

The Decision

In short, Deputy Judge Hollington (the Judge) was concerned with 2 questions:

  1. Could the Claimant rely upon Mr Yates' recently served expert report; or
  2. Would the Claimant have to rely upon the expert report prepared by his original expert, Mr Dall.​

The applicable case law, rules of court and guiding principles

The guidance given in Mitchell[2] and the very recent decision in AEI v Alstom[3] (handed down the day before the appeal was heard) applied. The Judge summarised his understanding of Mitchell being that "the court should strive to be a tough but wise, not an officious or pointlessly strict, disciplinarian".

The rules and practice directions material for the appeal were CPR 1.1 (The Overriding Objective), 3.1(2) (a) (power to extend time for compliance even after it has expired), 3.9 (relief from sanctions), 35.4 (court permission needed for expert evidence), and Practice Direction 23A para 2.7 which states: "Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it."

The significance of the Claimant's delay in disclosing Mr Dall's withdrawal

The Judge considered that the Claimant's delay in disclosing Mr Dall's withdrawal as an expert was a pivotal issue in this case and stated:

"In my judgment, it was wholly improper for the information about Mr. Dall's withdrawal to be withheld beyond a reasonable period to allow the Claimant to decide whether he could persuade Mr. Dall to change his mind or that some other arrangement could be made which would mean that the Claimant could still rely on Mr. Dall. Once the Claimant had decided that he had to find a new expert to replace Mr. Dall, which in the absence of evidence to the contrary I infer to be very soon after 3 May 2013, and most probably even before the listing appointment on 10 May 2013, then it is clear in my judgment that the Claimant should have disclosed the problem he faced to the court and the other side. For all the court knows, given the claim of the Claimant to privilege in respect of correspondence with prospective experts which has not been disclosed, some potential experts may have had to refuse instructions in the case because they were not available for a trial in the trial window. There is little doubt that the Court would have been sympathetic to the Claimant if it had applied to the court promptly for directions, because Mr. Dall's withdrawal was outside his control." [our emphasis]

Further, it was clear in the Judge's mind that the Bank and the Surveyor would have suffered serious prejudice as a result of the delay in the disclosure of Mr Yates' report. This was because the Bank and the Surveyor had already responded to Mr Dall's report and the Claimant had seen their experts' positions providing him with an unfair advantage in preparing Mr Yates' report. Therefore, the Bank and the Surveyor would have to respond again to the new report, which the Judge considered would mean that the trial would have to be adjourned. Accordingly, the Judge considered that the following words of Waller LJ[4] were directly applicable in this case:

"In the modern era it is more readily recognised that in truth, the payment of the costs of an adjournment may well not adequately compensate someone who is desirous of being rid of a piece of litigation which has been hanging over his head for some time and may not adequately compensate him for being totally (and we are afraid there are no better words for it) 'mucked about' at the last moment. Furthermore, the courts are now much more conscious that in assessing the justice of a particular case, the disruption caused to other litigants by last minute adjournments and last minute applications have also to be brought into the scales." [our emphasis]

Taking all the above factors together, the Judge concluded that the Claimant's conduct amounted to a serious abuse of the process of the Court.

The Deputy Master's judgment

The Judge was very clear that the Deputy Master (who granted permission to the Claimant to rely upon Mr Yates' report) failed to appreciate that the Claimant's conduct amounted to a serious abuse of the Court's process. In particular, the Judge commented that whilst the Deputy Master regarded the Claimant's desire to settle first without disclosing Mr Dall's withdrawal was an exculpatory factor, the Judge considered this clearly to be an inculpatory factor. Further, the Judge went on to suggest that the Deputy Master failed to:

  • find that the Bank and the Surveyor would suffer serious prejudice as a result if the new expert evidence were allowed in – "He made a fundamental error of principle and an error of law."
  • apply the important guidance given by the Court of Appeal in Mitchell.​

The Judge highlighted that it was the Claimant's clear duty, under Practice Direction 23A para. 2.7, to apply for further directions in respect of expert evidence "very soon after 3 May 2013. He did not need to wait until he had a new expert's report".

The Judge went on to say that:

"the Court would have managed the time within which the Claimant had to identify and instruct a new expert. It would have been sympathetic to the Claimant. As it is, if Mr. Yates 2nd report is allowed in, the trial would have had to be vacated, to the detriment of other court users who would have liked such a trial window. It is an important factor that the Court should enforce procedural discipline in order to raise standards of time­keeping in the courts, which the Deputy Master did not do." [our emphasis]

Disposal

In reaching his decision, the Judge weighed up the balance of justice between the parties and decided that this came firmly in favour of refusing the Claimant's application for permission to rely on Mr Yates' report, and stated:

"In my judgment…He [the Claimant] has only himself to blame for his predicament - he gambled that he could settle the case on a basis which he knew to be false, he has lost the gamble and he must make do with the only conceivable theoretical justification for the non-disclosure…namely that he was always going to fall back on the Dall report but without Mr Dall. That is where I see the justice of this case. I would decide the case on that basis but if necessary I would add that it is reinforced in my judgment by the Mitchell guidance. And on any basis in my judgment the Deputy Master plainly reached the wrong conclusion." [our emphasis]

The appeal was therefore allowed and the Court dismissed the Claimant's application for permission to rely upon Mr Yates' expert's report. Although of little comfort to the Claimant, the Judge did say that he was prepared to give directions that Mr Dall's report is in evidence at trial even though Mr Dall may not attend or otherwise engage in the directions for the experts to co-operate in narrowing the issues.

Comment

This case did not concern "expert shopping" – instead, it concerned a situation where the Claimant decided to gamble (as the Judge put it) with the rules by not telling the parties that his original expert, Mr Dall, had withdrawn from the case and instead attempted to settle the matter first. Unfortunately for the Claimant, this tactic did not pay off. Whilst Mr Dall's withdrawal was outside of the Claimant's control, the Judge took a firm view that the Claimant should have applied to the Court promptly for directions.  Therefore, this is another example, in the wake of Mitchell, of a judge highlighting the importance of enforcing procedural discipline, in order to raise standards of time-keeping in the courts.

In summary, parties should inform the Court promptly of any relevant information which could potentially impact the Court timetable, or prejudice another party. As can be seen in this case, the Court dislikes procedural tactics and such conduct may well amount to an abuse of the process of the Court.