Judicial discretion on expert evidence

The recent case of A v B [2019] EWHC 275 (Comm) illustrates the approach the courts will take when considering an application for an order to declare certain parts of an expert’s report inadmissible. 

The application arose as a consequence of the defendant’s challenge to the claimant’s claim for recognition and enforcement of an arbitral award. The claimant was awarded damages for alleged breach of a franchise development agreement (FDA). The FDA was governed by English law and the arbitration agreement provided for arbitration to be conducted in Paris. The tribunal concluded that the defendant, KFG, became an additional party to the FDA by novation, and became a party to the arbitration agreement by French law principles. 

KFG subsequently resisted recognition and enforcement of the award in the English proceedings brought by the claimant under section 103 of the Arbitration Act 1996, which enacts enacting article 5(1)(a) of the New York Convention. KFG argued that the law that governed whether KFG became a party to the arbitration agreement is the law governing the transfer of the FDA, and even if this was not the case the validity of the arbitration agreement is governed by English law. The claimant argued that the law governing the transfer of the arbitration agreement was the law governing the validity of the arbitration agreement and French law applied. 

Following the submission of the parties’ expert reports, KFG made an application for an order to declare inadmissible certain paragraphs of the experts’ reports. KFG argued, inter alia, that the sections of the reports which deal with questions of construction or the application of the law to the facts were inadmissible.

Mrs Justice Moulder considered the authorities. In Rogers v Hoyle [2014] EWHC Civ 257, the court refused the defendant’s application for declaration that the use of the Air Accident Report (AAIB) was inadmissible because it was not an expert’s report under CPR 32.1(2). The court held that the whole AAIB report was admissible as evidence in the proceedings, with it being a matter for the trial judge to make use of the report as he thought fit. The Court of Appeal upheld the decision at first instance and ruled that the principle that the findings of courts, tribunals and inquiries were inadmissible in subsequent proceedings did not apply to the AAIB report (Hollington v F Hewthorn & Co Ltd [1943] KB 587 distinguished). Christopher Clarke LJ observed that there was nothing to be gained (except in clear cases) from excluding or excising opinions in cases where the expert’s report does no more than opine on the facts which require no expertise. The proper approach was for the whole document to be before the court and for the trial judge to take account of the report only to the extent that it reflects expertise and to disregard it in so far as it does not (see also Secretary of State for Business Enterprise and Regulatory Reform v Aaron [2009] Bus LR 809). Rogers was applied in the more recent case of Moylett v Geldof [2018] EWHC 893 (Ch), in which Carr J held that it was preferable for the court to consider the report in its entirety and to attach such weight as it sees fit to specific paragraphs. 

Unsurprisingly, Moulder J dismissed the defendant’s application, holding that there was nothing to be gained by excluding the expert’s report. The proper course was, following Rogers and Geldof, for the whole report to be before the court and for the judge at trial to take account of the report only to the extent that it reflects expertise. She also agreed with the conclusion of Carr J in Geldof  ‘that the “ultimate message” from Roger is that it is much preferable for the court, rather than picking through experts’ reports, seeking to exercise individual sentences and engaging in an editing exercise, to allow the trial judge to consider the report in its entirety’.As for the argument that Rogers should be distinguished on the grounds that it concerned a report which fell outside CPR 35, Moulder J held that an expert’s report under CPR 35 was just dealing with a particular category of expert reports. 

The decision in A v B reinforces the general principle that the trial judge should consider the entire expert’s report and leave out any part of it that is inadmissible. It also illustrates the wide discretion the courts retain when dealing with issues concerning expert evidence. Although there may be circumstances in which the court may render various parts of an expert’s report inadmissible, those cases must, as Christopher Clarke LJ held in Roger, ‘be very clear’. 

Masood Ahmed is associate professor at the University of Leicester and a member of the Civil Procedure Rule Committee