Judge refuses to let claimant abandon “unfavourable” joint expert

Spencer: Claimant was presumptuous

A High Court judge has upheld a decision not to allow a claimant in a noise-induced hearing loss (NIHL) case to rely on a different expert because a joint expert produced an unfavourable report.

Mr Justice Martin Spencer said it was “presumptuous” of the claimant to assume that, if a fresh expert was allowed, the defendant would rely on the joint expert.

He said he gave permission to appeal in the case, which involved a fast-track damages claim for £5,000, because “there were issues” regarding the circumstances in which parties should be allowed to “abandon a single joint expert” and instruct their own.

The judge said this might be particularly the case in low-value NIHL case like this, where the single joint expert’s opinion would “often be determinative of the outcome in the case”.

However, having heard from the parties, Martin Spencer J said he became convinced that the approach taken by Mr Justice Eady in the leading case of Bulic v Harwoods [2012] EWHC 3657, and the approach of Miss Recorder McNeill QC in following it in this case, was the right one.

In Hinson v Hare Realizations [2020] EWHC 2386 (QB), James Hinson launched proceedings in 2017, and the case was allocated to the fast-track. The defendant denied liability.

A single joint expert, Laura Martin, was selected in December 2018. She was formally instructed the following year and produced a report in August 2019.

Martin Spencer J said: “That report did not support noise levels which would have been sufficient to enable the claimant to succeed in his claim.”

The trial was twice relisted, delaying it until February this year. Meanwhile, in December 2019, the claimant’s solicitor learned in a discussion with expert witness Adrian Watson in another NIHL case, that there “were or might be” deficiencies in Ms Martin’s report.

Taking advantage of the delayed trial, the claimant twice put further questions to Ms Martin under part 35, before commissioning an expert report from Mr Watson. This was done without informing the defendant.

Mr Watson’s report, which was favourable to the claimant, was received by the claimant three days before the trial. He applied for an order vacating the trial, reallocating the case to the multi-track and for permission to rely on the new expert report, with Ms Martin to act as the defendant’s expert.

Martin Spencer J said it was “somewhat presumptuous of the claimant’s solicitors” to assume that, if they were allowed to rely on Mr Watson, the defendant should be “forced to rely upon the report of Ms Martin”.

The judge said the defendant “might have sought permission to rely on their own, different expert”.

The defendant complained that the claimant had withheld his intentions and displayed a “disregard for the integrity of the single joint expert”.

Martin Spencer J said the recorder was “impeccable” in her approach to the task of balancing the interests of the parties, “taking into account not only the overriding objective but also the interests of the parties generally”.

The judge concluded: “I take the view that the decision by the learned recorder was well within the generous ambit of her discretion and that it cannot be said that she erred in law or applied the wrong test or otherwise so misdirected herself that her decision is capable of challenge.”

He dismissed the claimant’s appeal.

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