|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Shepherd & Neame & Ors v EDF Energy Networks (SPN) Plc & Ors  EWHC 123 (TCC) (29 January 2008)
Cite as:  Bus LR D43,  EWHC 123 (TCC)
[New search] [Printable RTF version] [Buy ICLR report:  Bus LR D43] [Help]
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL
B e f o r e :
| SHEPHERD & NEAME and others
|- and -
|EDF ENERGY NETWORKS (SPN) PLC and others
Crown Copyright ©
Mr. Justice AKENHEAD:
"Where a party has disclosed an expert's report, any party may use that expert's report as evidence at the trial."
"Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings"
He also relies upon CPR 35.7 (under which the Court can appoint a single joint expert) as supportive of his position that the court's approach should be sparing when it comes to allowing in expert evidence. He says that it is unnecessary for these two reports to be introduced as the Claimants have adequate expert evidence in the form of Mr Tucker's and Dr Lipczynski's reports and time and cost will be wasted. He will be put in difficulty if having to call Mr Bourdillon and Mr Coates.
"6. In my judgment, the answer to Mr Sutherland's [Gurney's Counsel] two points can be found in CPR 35.11 itself. It only applies where party A has already disclosed an expert's report and party B wants to rely on it as evidence at the trial. The disclosure of party A's report could only have occurred in accordance with CPR 35.4. In other words, it is a fundamental assumption within CPR 35.11 that there has already been compliance with CPR 35.4, and the report which party B now wishes to use is one for which the court has already given permission. In such circumstances, it is not necessary for party B to seek permission all over again; party B merely wishes to use a report for which permission has already been given.
7. Similarly, because CPR 35.11 assumes that party A's report has been disclosed in accordance with CPR 35.4, it does not matter whether, sometime after disclosure of that report, party A ceased to be a party to the proceedings. The reference to "a party [that] has disclosed an expert's report" in CPR 35.11 cannot be limited to those who happen to be parties to the proceedings at the time that that report is sought to be used by another: there is nothing in the rule which could limit its scope in that way. The reference in r.35.11 is to any party who has disclosed a report in accordance with r.35.4, whether they subsequently remain a party to the proceedings or not.
8. Prima facie, therefore, as a matter of straightforward construction of the CPR, Gleeds can use the engineering reports disclosed by Pearson, Styles and Wood, GMK, and Fourways. Moreover, I should say that, in my judgment, such a result is generally in accordance with the over-riding objective at CPR 1.1. It would be artificial, and possibly even misleading, in a case of this sort, for the court to have no regard whatsoever to the reports of the other experts, or the part played by those other experts in reaching the detailed contents of the CPR 35.12 joint statement….
11. Finally I should add this. Although I consider that, in general terms, it would be artificial for me to ignore entirely the views of the other engineering experts, it should not be thought that any great weight can be attached to the views of any expert who will not give oral evidence at the trial. Moreover, the fact that the majority of the engineering reports reach broadly similar conclusions on causation is also, of itself, of little account: cases of this kind are decided by reference to the quality of the expert evidence adduced at trial, and in particular the oral evidence. They are not determined by weight of numbers."
(a) CPR 35.11 gives them an unqualified right to do so.
(b) It is logical that, if the parties have complied with and relied upon Court orders, as here, with regard to the service of expert reports and to the production of joint statements setting out what the experts agree and disagree about, any party remaining in the proceedings can rely, as evidence, upon the reports of experts whose clients were, but are no longer, active parties to the proceedings. They will have conducted themselves on the basis that all the experts will be giving evidence at trial.
(c) Even if CPR 35.11 gave me a discretion, and in any event, pursuant to case management powers, I would allow the Claimants to rely upon these other reports. The five experts undoubtedly spent a considerable time talking together and producing four joint statements (albeit Mr Bourdillon did not contribute to the fourth). Those statements are before me in any event and contain the views of Mr Bourdillon and Mr Coates. To understand them in context, it is likely to be necessary to understand what their reports say.
(d) It is not disproportionate to permit the Claimants to rely upon these reports as evidence. If the case against the Second and Third Defendants had proceeded, they would have been able to do so and EDF must have prepared for trial upon the basis that Mr Bourdillon and Mr Coates would have given evidence. There is no prejudice particularly to EDF who can either call the two experts or rely upon the factors set out in Paragraph 11 of the Gurney judgment (see above). I have made it clear in argument that I would permit EDF's Counsel to cross-examine them if called pursuant to any witness summons issued by EDF. There remains time to issue such summonses.
(e) I do not see that costs will be materially increased. If Mr Bourdillon and Mr Coates are not called, then little time will be added overall. All Counsel and experts have doubtless (and I had) already read their reports, given that the settlement with the Second and Third Defendants occurred after the trial had started. They would probably have to be considered further in any event in exploring the ambit of the joint statements. Even if they are called as witnesses (which I suspect is unlikely), I anticipate that their examination would be fairly limited; the trial is in any event likely to be much shorter than the parties anticipated by reason of the departure of the Second and Third Defendants. It will be open to EDF to argue that, if reliance upon the reports turns out to be wholly unnecessary, a special costs order in their favour should be made.