28 January 2016Print This Post

High Court penalises party over non-compliant expert evidence and excessive bundles

Bundles: court only opened one of the 29 produced

Bundles: court only opened one of the 29 produced

The High Court has issued a costs penalty to a claimant that included material in expert evidence that it was not meant to and also flooded a preliminary hearing with unnecessary bundles.

Rejecting the argument that he should reserve the question of costs until the end of the case, as both could have become relevant by then, Mr Justice Males said it was “necessary in my judgment to mark the disapproval by the court of the course taken by C&S and, moreover, to do so now rather than waiting until the end of this litigation”.

He was ruling in C&S Associates UK Ltd v Enterprise Insurance Company Plc [2016] EWHC 67 (Comm), came after handing down a decision over preliminary matters a dispute between a claims handler and insurance company that we reported earlier this week.

He reserved the costs of the preliminary issues subject to the proviso that C&S must in any event bear the costs of preparation of the expert report and 80% of the costs of preparing the bundles for the hearing regardless of the future course of the litigation.

The expert report had included evidence which Males J said had been served without permission, and he required a version to be served with these paragraphs deleted.

“The inclusion of this material in [the expert’s] report was a deliberate decision, either by C&S itself or by those acting for it. [The expert’s] evidence was that he included this section of his report because he was instructed to do so by C&S’s solicitors, Sidley Austin. It more than doubled the length of the report and increased unnecessarily the costs of the preliminary issues.”

He continued that C&S “insisted” on producing 29 bundles for the hearing. “Only one of these bundles was even opened during the trial and when it was, the reference was extremely brief and added (with respect) nothing at all to any understanding of the case.

“It is true that disclosure of the documents contained in these bundles had been ordered, but it does not follow that it was reasonable, let alone necessary, for these to be included in the trial bundles. Inevitably this also increased the costs of the preliminary issues.”

“It is not at all obvious that the redacted passages from the report will form part of the next phase of the litigation but, in any event, it is necessary in my judgment to mark the disapproval by the court of the course taken by C&S and, moreover, to do so now rather than waiting until the end of this litigation.

“It is important that those litigating in this court are aware of the need for compliance with orders made regarding expert evidence; that so far as possible the costs of such evidence will not be allowed to spiral out of control; and that a party who deliberately chooses for tactical reasons to adduce expert evidence for which in large part no permission has been given should bear the risk that, in appropriate circumstances, the costs of preparing such a report may be entirely disallowed…

“Much the same reasoning applies to the preparation of the trial bundles, although I acknowledge that approximately 20% of the bundles would have been required in any event.”

Meanwhile, over in the Technology & Construction Court, Mr Justice Edwards-Stuart warned counsel against over-long skeleton arguments and citing too many authorities.

In Commercial Management (Investments) Ltd v Mitchell Design and Construct Ltd & Anor [2016] EWHC 76 (TCC), he said that one of the skeleton arguments submitted ran to over 70 pages, compared to 20 pages for the other parties.

“Allowing for the fact that the latter adopted a larger font and/or greater line spacing than the other two, it was still about two and a half times as long. The ability to navigate it was not assisted by the fact that it had no index.

“Paragraph 15.2.1 of the TCC Guide provides that: ‘In general terms, all opening notes should be of modest length and proportionate to the size and complexity of the case.’ In the context of this trial of these preliminary issues, I consider that a skeleton argument running to more than about 25 pages, assuming the usual spacing and font size, is not of modest length.

“The offending skeleton argument in this case exceeded this limit by a comfortable margin. There is a reason for this provision, which is not simply to save time and paper. More fundamentally, it is also the case that once a skeleton argument runs to more than about 25 pages, it is usually because it is over discursive, making it difficult for the reader to identify the real issues and to follow the argument.

“Also it makes it more difficult for the reader to find his or her way quickly to the part of the skeleton argument which is dealing with the point currently under consideration (particularly if it has no index).”

The judge added that around 40 authorities had been cited, but he had only needed to refer to a “handful” of them.

Edwards-Stuart J said: “I do not wish to be overcritical: of course counsel will wish to err on the side of caution and will be naturally averse to the risk of criticism if a relevant authority is not cited. I fully understand that.

“I would simply encourage counsel not to cite several cases where one or two will do, and not to cite authorities which simply illustrate the application of a well-known principle to particular facts (unless those facts are of particular relevance to the case under consideration) or which are examples where the conclusion contended for in the present case has been reached in different circumstances.”

By Neil Rose


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