The High Court’s decision in Bulic v Harwoods and others  EWHC 3657 (QB) provides useful guidance as to when the Court will grant a party’s application for permission to rely on alternative expert evidence, in circumstances where a single joint expe
The dispute in Bulic concerned damage to the engine of the claimant’s Jaguar car. The parties instructed a SJE to give an opinion why the engine had failed. After receiving the SJE’s report, which was unfavourable to him, the claimant had concerns regarding the SJE’s expertise and his independence (because the SJE accepted other instructions from Jaguar Landrover after accepting the instructions in this case). The claimant therefore applied to Court shortly before trial for permission to appoint his own alternative expert. The claimant accepted that the defendant could continue to rely on the SJE. The County Court judge refused permission as a case management decision and the claimant appealed that refusal to the High Court.
The Courts have historically taken a restrictive approach to the use of expert evidence, wanting to restrict its use in order to save time and cost. Permission is therefore required to rely on expert evidence at trial and the Courts encourage the use of SJE’s, especially in lower value cases.
In the High Court in Bulic, Mr Justice Eady reviewed the most important previous decisions about the grant of permission to rely on expert evidence in circumstances such as this. He said that matters such as these turn on their individual facts, the comments of Judges in the previous cases were being interpreted too “legalistically” and the most important thing was to do justice between the parties.
In finding in favour of the application, Eady J considered that:
- the opinion of the expert was fundamental to the resolution of the issue between the parties and was very likely to be determinative of the case on liability.
- the evidence required in this instance was of a technical nature and the court was more likely to be assisted by two experts’ opinions as opposed to one. Having just one expert could result in “trial by expert”.
- he did not need to decide whether the claimant’s criticisms of the SJE were correct. The trial judge could decide that after cross examination. The claimant would have a legitimate sense of grievance if he were barred from having these critical points investigated at trial.
- whether or not a case was “substantial” was not a strict criterion for deciding an application of this type and there was no general principle to the effect that permission should not be given in claims of lesser monetary value
- if the bar were raised too high for litigants who lose faith in a SJE, it will become a significant disincentive to agreeing a SJE and parties may insist on separate experts from the outset.
- the criticism of the SJE for accepting other instructions from Jaguar Landrover was incorrect. He was acting for both claimants and defendants and there was no evidence of bias.
This case is useful for litigants who are faced with an unfavourable SJE’s report and are considering the cost risk of making an application to instruct their own expert. Bulic shows that, even where the claim is for a more modest amount, if the evidence is technical and fundamental to resolving the main issues in dispute, the court may be willing to allow additional expert evidence.
For any further information on how and when to instruct experts or on litigation procedure generally, please contact John Mackle of Clarion’s commercial litigation team at firstname.lastname@example.org or on 0113 336 3336.
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