England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		16 October 2009

1. LORD JUSTICE SCOTT BAKER: This is an appeal by way of case stated from a decision of District Judge Chalk, sitting in the North Cumbria Magistrates' Court, on 8 April 2009.
2. The district judge dismissed four complaints against the appellant under the Environmental Protection Act 1990 and the Water Resources Act 1991 relating, in short, to the absence of a waste management licence and pollution. The prosecution had alleged that "feather water" - which was a by-product of "feather meal" produced by the appellant - was controlled waste requiring a licence and that it had caused pollution. In short, the district judge concluded that it was not waste at all that needed to be controlled, it was merely a by-product of the process. The case did not proceed beyond the end of the prosecution case.
3. The point of law on which a case has been stated relates to David Green who the appellant was going to call as an expert witness. As I have mentioned, the case was stopped before that point was reached at the close of the prosecution case. The point is made however that Mr Green's evidence in statement form had been of considerable assistance to the appellant in cross-examination of the prosecution witnesses and in achieving the result that the case was stopped at half time.
4. At the conclusion of the case the district judge granted a defence costs order under Section 16 of the Prosecution of Offences Act 1985. He did not quantify the amount, and so therefore it had to be dealt with under the regulations by the appropriate officer. But the issue is whether the costs of Mr Green as an expert witness should have been included, the district judge concluding that they should not.
5. There are two preliminary matters which need to be mentioned at this stage. The first is an extension of time for lodging at the appeal. We granted that extension at the commencement of this hearing.
6. The second matter is that the appellant seeks a number of amendments to the stated case. These amendments have been refused by the district judge. The first amendment relates to paragraph 5 which, as initially drafted, read:

"The appellant had had a report prepared by Mr Green which had been served on the prosecution but which was only served on the court on the first day of trial, ie 6 April 2009."

The amendment that is sought is to amend that so as to read:

"The appellant had had a report prepared by Mr Green. The report of Mr Green was served on Carlisle Magistrates' Court by the appellant's solicitors on 22 April (sic) [October] 2008. On 31 March 2009 prior to the trial it was confirmed to the appellant's solicitors by the court that it had possession of the expert report."

7. The amendment seemed to us to coincide with the correct factual position and accordingly we granted that amendment at the commencement of the proceedings.
8. The second amendment arises in respect of paragraph 11 of the case. This, as initially drafted, read:

"On enquiry the appellant conceded that a relationship existed and that it had not been disclosed to the prosecution or the court. The full extent of the relationship has never been disclosed. I again accepted Mr Green was a witness of fact and gave the appellant an opportunity to address me regarding his status."

The proposed amendment sought is:

"On enquiry the appellant conceded that a relationship existed. The full nature of the relationship of the expert's relationship was disclosed within his report and had therefore been disclosed to prosecution and the court, at the time the report was disclosed. Furthermore no objection was raised by the prosecution."

9. Mr Shaun Spencer for the appellant submits that it may be that it is more appropriate, rather than granting the amendment, to point out that in the light of the earlier amendment it is plain that the district judge was proceeding on a slightly false basis. It seems to us that it makes little difference one way or the other whether the amendment is granted. For my part, I am inclined to proceed on the basis of the case as originally drawn and taking into account Mr Spencer's observations.
10. The third amendment sought relates to paragraph 17 of the case - "The Finding". The district judge there said in the original case:

"Although it was not argued in court, I am of the opinion that had the case not been dismissed it was clear that the issue between the parties was one of legal interpretation, not of a scientific nature. Whether "feather water" was controlled waste is defined by reference to Section 76 of the Environment Protection Act 1990 and case law (including Arco Chemie Netherlands Ltd and Application by Palin Granit OY [2002] 1 WLR. In my view these were not issues requiring evidence from an expert witness."

The amendment sought is to delete that finding. Again, this is not pursued with great vigour by Mr Spencer because he submits that the real underlying point is that here was the judge going off and making a finding on a point that was never argued before him. It seems to me again that it is appropriate to leave paragraph 17 as it originally stands.

11. It is plain that the report of Mr Green was disclosed to the prosecution in the ordinary way and it was apparent to everyone - and there was no objection about this - that it was the intention of the defendant to rely on it, both for the purposes of cross-examination and, should the need arise, of evidence from Mr Green himself.
12. The district judge said in the stated case (paragraph 6):

"6 On reading the report I realised that Mr Green had enjoyed a commercial relationship over a number of years with Alba Proteins Ltd in that he had advised them on a design of the process in question and was involved in obtaining environmental permits from the local authority and later alterations.

7 At the commencement of the case I challenged whether Mr Green's commercial relationship undermined him as an independent witness who could give 'opinion evidence'. I accepted that he could give evidence of fact. The prosecution had not considered the matter.

8 Although I raised the issue at the opening no final determination was made, Mr Green being allowed to remain in the court during the hearing of evidence, with the consent of both the court and the prosecution. I gave the parties an opportunity to consider their position on the status of Mr Green so that they could address me later.

9 Having heard evidence, I dismissed the information at the close of the prosecution case, on 8 April, as they failed to show that the defendant company was responsible for any of the actions complained of.

10 I granted an application for a 'defence costs order' (section 16 Prosecution of Offences Act 1985). The issue of Mr Green was then reconsidered. Mr Green had not, of course, given evidence or been cross-examined and I had not had an opportunity to assess his evidence other than in his report.

11 On enquiry the appellant conceded that a relationship existed and that it had not been disclosed to the prosecution or the court."

(That is paragraph 11 as originally drawn). It is plain that the judge was in that respect under a misapprehension because the full picture was available.

13. The district judge went on to say that the appellant submitted that a conflict of interest on the part of an expert did not automatically disqualify him from giving evidence - it was not a matter of admissibility; it was a matter of weight - and cited R v Stubbs [2006] EWCA Crim 2312 in support of that contention. There were, as the judge said, no submissions. The point was not raised about whether Mr Green was simply a witness of fact.
14. There appears to have been no submission to the contrary, but the judge referred himself to civil cases: Toth v Jarman [2006] 4 All ER 1276 and Liverpool Roman Catholic Archdiocese Trustee Incorporated v Goldberg No 2 [2001] WLR 2331. The district judge concluded that those authorities suggested a somewhat different approach from R v Stubbs.
15. The judge went on to say that since the hearing his attention had been drawn to Bonython (a South Australian case) which makes it clear that in order for expert evidence to be admissible there are two questions the court must decide: (1) whether the subject matter of the opinion falls within a class of subject upon which expert testimony is admissible; and (2) whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in researching (sic) [resolving] the issues before the court.
16. In my judgment, that correctly states the position in criminal cases and the line of authority, in particular Stubbs, is relevant to considerations in cases of the present kind. And in so far as there is any difference of approach with regard to civil cases, that is of no relevance in the present situation.
17. It appears that the district judge had initially taken the view - erroneously in my judgment - that because of Mr Green's connection with the appellant his evidence was not admissible and therefore that the costs in relation to him as an expert should not be allowed. But subsequently he had his attention drawn to Bonython which made it clear, if it was not entirely clear before, that that was not the right route for him to go down. We have the finding at paragraphs 16, 17 and 18 in these terms:

"16 I found, having read the report, that the vast majority of Mr Green's evidence was factual evidence that I would have admitted had the trial progressed.

17 Although it was not argued in court, I am of the opinion that had the case not been dismissed it was clear that the issue between the parties was one of legal interpretation and not of a scientific nature. Whether 'feather water' was controlled waste is defined by reference to Section 75 of the Environmental Protection Act 1990 and case law including Arco Chemie Netherlands Ltd and Application by Palin Granit OY. In my view these were not issues requiring evidence from an expert witness.

18 I determined that Mr Green was not an expert who could give opinion evidence and that costs could be paid from central funds for Mr Green's attendance as a professional witness only."

18. It is unfortunate that the judge reached the conclusion in paragraph 17 without seeking the assistance of either party. In my judgment it was not permissible for him to do so, anymore than it was permissible for him to conclude that Mr Green's evidence as an expert (full stop) was inadmissible because he had a close connection with the appellant.
19. It is my view that the [answer to the] question for the court -

"(1) Was I correct in law in ruling that David Green was not to be treated as an expert witness in the circumstances of the case?" -

is no, whether the judge reached that conclusion on the basis of Mr Green's connection with the appellant or whether he reached that conclusion on a basis that was as set out in paragraph 17 unargued before him.

20. The second question -

"Was I correct in determining that the costs incurred in Mr Green's role pre-trial were not. recoverable?" -

again, the answer to that must be in the negative because it seems to me that the whole purpose of having an expert is not only to give evidence himself but to assist in the cross-examination of opposition witnesses.

21. The question therefore remains as to what should now be done. It seems to me that there are two options. Either the case should be remitted for the district judge to consider again, following argument, the point that he relied on as set out in paragraph 17 of the case, or alternatively to remit the case with a full defendant's costs order including the costs of the witness Mr Green as an expert to be assessed by the appropriate officer of the court in the ordinary way.
22. In all these circumstances I think that the latter course is the preferable one and is the course that would bring this case to the speediest and most economical conclusion.
23. I would only add this. This decision, if my Lord agrees with it, should not be interpreted as carte blanche to instruct experts in every case whatever the circumstances. The position is that the rules are clear as to prior disclosure of reports and the steps that have to be taken. This court turns simply on the point of law that it is not appropriate in criminal cases to rule an expert's evidence as inadmissible simply on the basis that he has some connection with the party who is intending to call him which, in the circumstances, may or may not reflect upon the weight that is to be attached to such evidence as he gives.
24. I would therefore allow this appeal and answer the questions posed as indicated.
25. MR JUSTICE CRANSTON: I agree, and would underline the ruling that my Lord has given about commissioning excessive expert evidence and the narrowness of the decision in this case.
26. MR SPENCER: I am grateful. There is the matter of costs; a costs from central funds order is requested.
27. LORD JUSTICE SCOTT BAKER: Agreed, yes.