Birmingham |
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B e f o r e :
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JMD |
(Applicant) |
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SPD |
(Respondent) |
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Ludgate House, 107-111 Fleet Street, London EC4A 2AB
Tel: 0330 100 5223 | Email: uk.transcripts@escribers.net | uk.escribers.net
MR A DAY appeared on behalf of the Respondent
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Crown Copyright ©
JUDGE PARKER:
"If, having obtained a joint expert's report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert's report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence."
a. The nature of the issue or issues being addressed by the expert;
b. the number of issues between the parties;
c. the reason the new expert is wanted;
d. the nature of the issues at stake and their importance;
e. the effect of permitting one party to call further expert evidence on the conduct of proceedings;
f. the delay of making such an application;
g. the delay that the instructing and calling of a new expert will cause;
h. any other special features of the case; and
i. the overall justice to the parties within the context of the proceedings.
"i) The party seeking to adduce expert evidence of their own, notwithstanding the fact that a single joint expert has already reported, must advance reasons which are not fanciful for doing so.
ii) It will then be for the court to decide, in the exercise of its discretion, whether to permit the party to adduce such further evidence.
iii) When considering whether to permit the application, the following non-exhaustive list of factors adumbrated in Cosgrove & Anor v Pattison (supra) may fall for consideration.
[…]
iv) For my own part, I would draw particular attention to the words 'the overall justice to the parties in the context of the litigation' which seems to me to encapsulate neatly the court's task."
"The approach to quantum […] is simply whether the costs sought are reasonable, in the context of the nature of the litigation, the issues, the resources, and how each party is approaching the proceedings."
"To apply a standard basis of assessment discount may be a useful approach or cross check against the reasonable overall figure in some cases, but I do not read any judge in the reported cases as saying that it should be a formula of universal and automatic application. In some cases, it would have the effect of leaving a payee to fund the shortfall out of his/her own resources which may not be possible, or may not be fair to the payee. It may also be unfair to the lawyers who find themselves having to provide legal services at a significant discount. On balance I prefer to look at the sums sought in the round, taking account of all relevant factors and assess an overall reasonable figure, rather than to adopt a standard assessment discount other than as a cross check."
"in this case, as in others, that the […] solicitors should not be entitled at this stage to benefit from what would essentially be an indemnity against all their costs incurred which would be an unusual outcome."