Expert Evidence - High Court refuses permission to rely on a more favourable expert
The Claimant, Mr Hinson, had worked in a machine shop for a number of years during which time he alleged that he was exposed to high levels of noise without protection or training. Mr Hinson issued a claim against his employer Hare Realizations Ltd and his claim was allocated to the fast-track permitting him to select a single joint expert from a pool and agree instructions with the defendant.
The expert’s report was not favourable to Mr Hinson and although his solicitor raised questions about the expert ahead of the trial date no formal application was made. The trial was originally listed to be heard on 5 November 2019 but it was vacated due to lack of judicial availability. The second trial date was also vacated on the application of the claimant who was in hospital and unable to attend. When the trial date was vacated to February 2020 Mr Hinson’s solicitor decided to commission an alternative expert’s report. This report was favourable to the claimant and noted that there may be deficiencies in the jointly appointed expert’s report. An application was then made three days before the trial for another trial date, permission for the Claimant to rely on the new expert’s evidence and for the case to be reallocated to the multi-track.
Miss Recorder McNeill QC refused the application and the High Court refused to overturn her decision which effectively barred the claimant from adding his own more favourable witness shortly before trial. Although it was accepted that the claimant had lost confidence in the joint expert for genuine reason, there was no lack of cogency or analysis in the expert’s report and the defendant would be aggrieved if the trial was vacated again at a considerable cost particularly where the single joint expert had been proposed by the claimant.
The case is a reminder to all that parties should consider the basis upon which an expert is appointed from the outset carefully and if there are any issues with the appointed expert to raise such matters quickly and within sufficient time before trial.
Posted on 10/07/2020 by Ortolan
