Expert’s report – Disclosure – Practice – Claimants bringing action in nuisance and/or negligence – Claimants seeking to admit report of expert valuer but not to disclose second report prepared by same expert – Whether Civil Procedure Rules requiring court to order disclosure of second report before relying on other expert report – Application for directions granted In 2007, the claimants put their property on the market and received an offer, subject to contract, in the sum of £402,500. The offer was subsequently withdrawn, apparently in consequence of the escape of heating oil from the defendants’ oil tank into the claimants’ property. Thereafter, in a falling market, the property failed to sell. It was the defendants’ case that the problem was fully remedied by August 2008. However, the claimants brought an action for damages against the defendants in nuisance and/or negligence. It was agreed that £402,500 was the starting point for any assessment of loss. However, the claimants contended that, because of the stigma of previous contamination, which they were now obliged to disclose to any prospective purchaser, their land now had no value. The diminution in value was therefore £402,500. By an order dated 28 October 2011, Akenhead J allowed each party to call one expert environmental consultant and one expert valuer. Their reports were to be served by 10 February 2012. The experts were thereafter to meet and produce a joint statement of matters agreed and disagreed by 24 February 2012. Neither party chose to serve a report from an environmental consultant but each side served reports from expert valuers. The claimants’ solicitors made an application for directions relating to the expert evidence as a result of the failure on the part of the defendants’ expert valuer to attend the joint meeting pursuant to the order of the court and CPR 35.12. The defendants cross-applied for an order that the claimants’ expert valuer be debarred from giving expert evidence or that he be obliged to provide copies of another undisclosed report, which he had prepared in respect of the valuation matters. The court was asked to decide whether the claimants’ report was properly to be regarded as an expert report; and whether the claimants were under a duty, pursuant to CPR 35.4 (power to restrict expert evidence), to disclose the second report which they claimed to be irrelevant. Held: The application for directions was granted. Once the figure of £402,500 had been agreed, no other expert evidence was required to support the claimants’ primary claim which depended on the proposition that a property which could not be sold had no value, which was a matter of law and/or argument and not a matter of expertise. Furthermore, even if it were, the claimants’ expert had done no more in his report than state the obvious, namely that the test of the validity of the assessment of the asking price was the price at which the property ultimately sold, if it did. The court did not read his report as an express or implied statement of opinion that a property which could not be sold had no value. He would need to say that expressly if it was his view: experts’ reports should not be a matter of necessary implication. Accordingly, now that the parties had reached a belated agreement about the asking price, the claimants’primary case was not assisted one way or the other by the short report from the claimants’ expert. In Vasiliou v Hajigeorgiou [2005] 1 WLR 2195 and Edwards-Tubb v JD Wetherspoon PLC [2011] EWCA Civ 136, [2011] PLSCS 78, the Court of Appeal had emphasised the importance of openness under the Civil Procedure Rules, and made plain that, in certain instances, that openness would trump questions of privilege and there might be cases in which an expert might have to disclose both reports as a condition of being permitted to give evidence at all. However, there might be cases where requiring an expert to disclose everything that he produced, regardless of privilege, could give rise to injustice. It might mean that all expert draft reports became disclosable, or all documents produced by the expert for the sole purpose of assisting counsel with topics for cross-examination. Therefore, there could be no general rule that everything was disclosable, regardless of privilege. In the circumstances of the present case, the claimants’ expert would not be required to provide copies of his other report, pursuant to CPR 35.4 (power to restrict expert evidence), principally because both experts had become slightly confused as to what they should be doing. It would be wrong, and potentially unjust, to require either of them to provide privileged reports which might be based on a misunderstanding of the issues. Peter Susman QC (instructed by Jefferies Essex LLP, of Southend-on-Sea) appeared for the claimants; David Platt QC (instructed by. Berrymans Lace Mawer) appeared for the defendants. Eileen O’Grady, barrister
Expert’s report – Disclosure – Practice – Claimants bringing action in nuisance and/or negligence – Claimants seeking to admit report of expert valuer but not to disclose second report prepared by same expert – Whether Civil Procedure Rules requiring court to order disclosure of second report before relying on other expert report – Application for directions granted In 2007, the claimants put their property on the market and received an offer, subject to contract, in the sum of £402,500. The offer was subsequently withdrawn, apparently in consequence of the escape of heating oil from the defendants’ oil tank into the claimants’ property. Thereafter, in a falling market, the property failed to sell. It was the defendants’ case that the problem was fully remedied by August 2008. However, the claimants brought an action for damages against the defendants in nuisance and/or negligence. It was agreed that £402,500 was the starting point for any assessment of loss. However, the claimants contended that, because of the stigma of previous contamination, which they were now obliged to disclose to any prospective purchaser, their land now had no value. The diminution in value was therefore £402,500. By an order dated 28 October 2011, Akenhead J allowed each party to call one expert environmental consultant and one expert valuer. Their reports were to be served by 10 February 2012. The experts were thereafter to meet and produce a joint statement of matters agreed and disagreed by 24 February 2012. Neither party chose to serve a report from an environmental consultant but each side served reports from expert valuers. The claimants’ solicitors made an application for directions relating to the expert evidence as a result of the failure on the part of the defendants’ expert valuer to attend the joint meeting pursuant to the order of the court and CPR 35.12. The defendants cross-applied for an order that the claimants’ expert valuer be debarred from giving expert evidence or that he be obliged to provide copies of another undisclosed report, which he had prepared in respect of the valuation matters. The court was asked to decide whether the claimants’ report was properly to be regarded as an expert report; and whether the claimants were under a duty, pursuant to CPR 35.4 (power to restrict expert evidence), to disclose the second report which they claimed to be irrelevant. Held: The application for directions was granted. Once the figure of £402,500 had been agreed, no other expert evidence was required to support the claimants’ primary claim which depended on the proposition that a property which could not be sold had no value, which was a matter of law and/or argument and not a matter of expertise. Furthermore, even if it were, the claimants’ expert had done no more in his report than state the obvious, namely that the test of the validity of the assessment of the asking price was the price at which the property ultimately sold, if it did. The court did not read his report as an express or implied statement of opinion that a property which could not be sold had no value. He would need to say that expressly if it was his view: experts’ reports should not be a matter of necessary implication. Accordingly, now that the parties had reached a belated agreement about the asking price, the claimants’primary case was not assisted one way or the other by the short report from the claimants’ expert. In Vasiliou v Hajigeorgiou [2005] 1 WLR 2195 and Edwards-Tubb v JD Wetherspoon PLC [2011] EWCA Civ 136, [2011] PLSCS 78, the Court of Appeal had emphasised the importance of openness under the Civil Procedure Rules, and made plain that, in certain instances, that openness would trump questions of privilege and there might be cases in which an expert might have to disclose both reports as a condition of being permitted to give evidence at all. However, there might be cases where requiring an expert to disclose everything that he produced, regardless of privilege, could give rise to injustice. It might mean that all expert draft reports became disclosable, or all documents produced by the expert for the sole purpose of assisting counsel with topics for cross-examination. Therefore, there could be no general rule that everything was disclosable, regardless of privilege. In the circumstances of the present case, the claimants’ expert would not be required to provide copies of his other report, pursuant to CPR 35.4 (power to restrict expert evidence), principally because both experts had become slightly confused as to what they should be doing. It would be wrong, and potentially unjust, to require either of them to provide privileged reports which might be based on a misunderstanding of the issues. Peter Susman QC (instructed by Jefferies Essex LLP, of Southend-on-Sea) appeared for the claimants; David Platt QC (instructed by. Berrymans Lace Mawer) appeared for the defendants. Eileen O’Grady, barrister
