Neutral Citation Number: [2008] EWHC 123 (TCC)

Case No: HT 06 81
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29 January 2008

Before:

MR JUSTICE AKENHEAD
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Between:

	SHEPHERD & NEAME and others	Claimant	
	- and -		
	EDF ENERGY NETWORKS (SPN) PLC and others	Defendant	

 Geoffrey Brown (instructed by Morgan Cole) for the 1st to 3rd  6th to 9th Claimants
Ben Elkington (instructed by Kennedys) for the 4th and 5th Claimants

Nigel Jones QC and William Evans (instructed by Fisher Scoggins LLP) for the 1st Defendant

Hearing dates: 23-4, 29 January 2008
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 JUDGMENT

Mr. Justice AKENHEAD: 
Introduction

1.	This application is made during the trial by the Claimants to rely upon the reports of Mr. Bourdillon and Mr. Coates, the fire experts retained by the Second and Third Defendants who now no longer play any part in these proceedings, consent orders having been made on the second and third days of the trial whereby the claim and respective part 20 claims have been discontinued against them.

2.	The application raises issues under CPR 35.11 which states:

“Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial.”

3.	Previously, CPR 35.11 has been considered by His Honour Judge Coulson QC (as he then was) in Gurney Consulting Engineers v Gleeds Health  & Safety Ltd [2006] EWHC 43 (TCC)

The background

4.	This claim relates to a fire which occurred in Butchery Lane, Canterbury, Kent on 3 July 2001. The fire started in and badly damaged the City Arms, 7 Butchery Lane, then owned by the Fourth Claimants and managed (and occupied) by the Fifth Claimants. The First to Third and Sixth to Ninth Claimants (“the Neighbouring Claimants”) owned or occupied adjacent premises which were also affected by the fire. EDF Energy Networks (SPN) PLC (“EDF”) was the electricity distributor at the material time. The Second Defendant, Whitbread PLC, had been the owner of the City Arms until some eight weeks before the fire. The Third Defendants were electrical contractors retained by Whitbread from time to time who had done various works at the City Arms at various times. 	

5.	The claim was commenced in 2006 and has been proceeding in a relatively conventional way. By various orders made at various times, the two sets of Claimants and the three Defendants were required to have their experts meet, discuss matters on a without prejudice basis, produce joint statements identifying what they agreed and disagreed about, and to exchange expert reports. That is what happened.

6.	The Neighbouring Claimants’ expert is Mr Tucker, the 4th and 5th Claimants’ is Dr. Lipczynski, EDF’s is Dr Fletcher, the Second Defendant’s was Mr Bourdillon and the Third Defendant’s was Mr Coates. Their exchanged reports appear thorough but, perhaps unsurprisingly, they do not agree on every matter. Broadly, based upon the exchanged reports and the first four Joint Statements, all experts except Dr. Fletcher seem to have agreed that the source or seat of the fire was on the supply side, that is on the electricity supply side of the electrical meter. Dr Fletcher’s analysis is that the fire probably started on the consumer’s side of the meter. That is important because all Counsel accepted in opening that, if the fire started on the consumer side, EDF would not be liable. It remained in issue whether, even if the fire started on the supply side, EDF was liable.

7.	On the first day of the trial, the 21st January 2008, the parties informed me that there was a very good prospect that a compromise would be achieved in effect to allow the Second and Third Defendants out of the proceedings. I adjourned the hearing until the next day, the 22nd January, when I was told that the Neighbouring Claimants had settled with the Second and Third Defendants but that the Fourth and Fifth Claimants had not. I was told that the Neighbouring Claimants had a claim in separate proceedings against the Fourth and Fifth Claimants, relating to the fire, which had been stayed. I lifted the stay, made orders requiring various steps to be taken to enable that claim to proceed at the same time and adjourned the start of the trial until the following day. I was not wholly surprised to be told at the start of the third day that the Fourth and Fifth Claimants had also resolved their differences with the Second and Third Defendants as well as the Neighbouring Claimants.   

8.	On the first day, Mr Brown, Counsel for the Neighbouring Claimants, had indicated that in the event that the Second and Third Defendants took no part in the proceedings, he would apply under CPR 35.11 for an order confirming that his clients could rely upon the reports of their experts’ reports. He made that application during his full opening on the third day, the 24th January, supported by Mr Elkington for the Fourth and Fifth Claimants. Mr. Jones QC for EDF opposed that application during his opening. Following that, I indicated that I acceded to the application and would give my reasons later, which I now do by this judgment. 

	The arguments

9.	Mr Brown relies upon the Gurney decision as authority for the proposition that the Claimants are entitled to rely upon the expert reports of Mr Bourdillon and Mr Coates in circumstances where the Second and Third Defendants have dropped out of the proceedings. He argues that in effect his clients are so entitled as of right given the wording of CPR 35.11. In any event, he argues that it is fair that this can happen given these experts’ involvement until past the twelfth hour.

10. 	Mr Jones QC argues otherwise. He refers to CPR 35.1 which states:

“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.

	Discussion  
11.	The wording of CPR 35.11 is unequivocal and unqualified: it applies where any party has put in an expert’s report so that any party may rely upon it as evidence. There is no qualification that it only applies to a party (whose expert’s report has been disclosed) if it remains a party. The party which wishes to rely upon that report as evidence is not limited to the party which has disclosed it in the first place.

12.	CPR 35.1 must be read with CPR 35.11. Whilst the indiscriminate use of experts and in particular the reliance by one party on more than one expert in each relevant discipline is discouraged, often parties will be allowed each to call one expert in each material discipline, if necessary or otherwise desirable. CPR 35.7 is an example where the Court can, to save cost, resources and time, order that a single joint expert is appointed; that applies, for example, in cases where the amount in issue is relatively small and the single joint expert can relatively easily address the issues from the joint perspective of the parties. Thus, in this Court, quantity surveyors are sometimes appointed (often by agreement) as a single joint expert to address quantum matters in cases on final accounts and defects cases. Where, however, the Court has gone down the route, as here, of permitting all five parties to rely upon their own technical experts, with the concurrence of the parties, the Court has accepted that it was reasonable in the first place to permit the introduction of such expert evidence as is presaged in their reports.

13.	HHJ Coulson’s judgment in Gurney is illuminating and in my view correct. The facts of the case are comparable. Gurney was a defendant in proceedings relating to a refurbishment project of a terrace which had collapsed. Gurney had brought in various parties as Part 20 defendants: architects, contractors and Gleeds, the project managers. The contractors had brought in a scaffolding sub-contractor. Gurney settled with the Claimant, the architects and the contractors. Gleeds wished to rely upon the exchanged expert reports of the parties who had settled. Gurney objected. The material parts of the judgment are:
“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.” 

14.	I am of the view that in the circumstances of this case the Claimants are entitled to rely upon the reports of Mr Bourdillon and Mr Coates pursuant to CPR 35.11; my reasons are as follows;

(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.    

15.	It follows that the Claimants may rely upon the reports of Mr Bourdillon and Mr Coates in the trial which is proceeding.