Mr R Hollington QC
27 February 2014
The Claimant was refused permission to rely on a second expert's report where he had already served the report of his original expert and failed to notify the parties that the original expert had withdrawn from the case.
The claimant had a mortgage with the first defendant and brought the claim because he believed that they had sold the mortgaged property at a gross undervalue. The claimant added the second defendant to proceedings as he had relied on the advice.
Proceedings were issued and both parties served expert evidence in accordance with court directions. On 13 May 2013, the claimant's expert informed the claimant that he was retiring and therefore would be withdrawing from the case.
The claimant instructed another expert and did not notify the parties of this until 27 November 2013. The second expert's report was served on 20 December 2013 and the claimant was granted permission to rely on this expert's report. The defendants appealed and applied to strike out the claim.
The court held that the initial expert's withdrawal was outside the claimant's control and therefore there was little doubt that the court would have been sympathetic to the instructions of another expert if this had been done promptly. However, the claimant's conduct had amounted to a "very serious abuse" of process and whilst the appeal was not allowed, the claimant was only allowed to rely on the first expert's evidence even though he might not be attending trial.
The judge considered that the deputy master who initially granted permission had failed to consider the guidance given in Mitchell v News Group Newspaper Ltd  EWCA Civ 1537,  1 WLR 795. He had made a "fundamental error of principle and an error of law." The trial date had been fixed and the defendants would have suffered serious prejudice if the second expert's report was admitted as the defendants would need time to respond to the report and the trial would have to be adjourned.
This case serves as timely reminder to all parties that if there is any change in position that may have significant impact a case, prompt action is required to prevent or minimise prejudice to the parties.