Doyle v HDI Global Specialty SE [2023] EWHC 2722 (KB)
If you haven’t paid your expert(s) their fees, and they decide not to attend trial, then your whole case could be struck out by the Court.
This was highlighted in the case of Doyle v HDI Global Specialty SE [2023] EWHC 2722 (KB). This was a breach of contract/negligence matter in respect of faulty cavity wall insultation installed in the Claimant’s home by the Defendant.
The Claimant, Mr Doyle, instructed an expert surveyor to assist him, Mr Muir, and obtained an initial report. Mr Muir then returned to Saudi Arabia, and an alternative expert, referred to in the Judgment as ABC, was sourced to provide further assistance.
ABC produced an initial report. The Defendant’s own expert, Mr Mancini, prepared his own report. In accordance with Court directions, a joint statement of issues was ordered to be served. No meeting of experts took place, ABC having failed to engage with the process.
The Claimant had therefore breached the Court Order regarding the exchange of joint expert evidence. In fact, ABC had contacted the Court directly, requesting to be removed from the Court record. ABC went on to explain that the Claimant’s Solicitor had failed to sign his Terms and Conditions, and had failed to pay ABC monies owed to him for work carried out on this case, and on others. ABC went on to accuse the Claimant’s solicitor of routinely naming him on cases as expert, without his consent.
As a result of this, the Defendant submitted an Application to the Court, seeking an Order that the Claimant, Mr Doyle, should not be allowed to rely on ABC’s evidence at trial. In response, the Claimant filed his own Application, seeking to vacate the trial listed, and stay the claim for six months to allow him time to liaise with ABC.
The Application was considered by His Honourable Judge Carter, who dismissed it. The parties had previously agreed that without oral evidence from ABC, Mr Doyle could not succeed with his claim, and the Court dismissed the claim in its entirety, with costs orders.
Mr Doyle appealed. At appeal, Mr Justice Freedman lamented that there was a high bar involved in overturning a case management decision. The case of Global Torch Limited v. Apex Global Management Limited [2014] 1 WLR 4495 was considered, in which Lord Neuberger PSC said at [13]:
“The essential question is whether it was a direction which Vos J could properly have given. Given that it was a case management decision, it would be inappropriate for an appellate court to reverse or otherwise interfere with it, unless it was “plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree” as Lewison LJ expressed it in Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743, para 51:
“Case management decisions are discretionary decisions. They often involve an attempt to find the least worst solution where parties have diametrically opposed interests. The discretion involved is entrusted to the first instance judge. An appellate court does not exercise the discretion for itself. It can interfere with the exercise of the discretion by a first instance judge where he has misdirected himself in law, has failed to take relevant factors into account, has taken into account irrelevant factors or has come to a decision that is plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree. So the question is not whether we would have made the same decisions as the judge. The question is whether the judge’s decision was wrong in the sense that I have explained.”
Mr Justice Freedman rejected the Claimant’s appeal. He observed, ‘If HH Judge Carter should have given a further opportunity to Mr Doyle to deal with the email [sent by ABC to the Court], events as they moved on showed that this was not a serious irregularity nor did it cause prejudice. That was because there was nothing in the email which, when taken into account, led towards a different conclusion.’
The case acts as a reminder that, just as a solicitor should enter into a proper CFA with their client, or with Counsel, their agreement with an expert should also be set in stone at the outset of the instruction, and any expert’s outstanding invoices should be paid in a timely manner.
If you have experienced similar issues and would like further advice and assistance on this, please get in touch.
Mike Hollin, Costs Consultant
14.03.2024