Jersey Unreported Judgments

2002/237

ROYAL COURT

(Samedi Division)

10^th December 2002 

Application by the Defendant to admit a further expert's report.

Advocate T. J. Le Cocq for the Plaintiff.

Advocate A.D. Hoy for the Defendant.

judgment

the commissioner:

1.        This trial has been adjourned twice for reasons which it is not necessary to detail here.  A week has been set aside and there is little question that the case would have been concluded in the time allocated to it.  Each side has an expert advising it.  The case opened on Monday 9^th December, but on Friday 6^th December Advocate Le Cocq was preparing to file an additional expert's report by his expert, Dr Silvia Correia, which dealt with matters that had arisen in the Algarve in July, October and November.

2.        He was readily prepared for an exchange of expert's opinions but Advocate Hoy, after reflection, said that he would not be filing a further report by his expert, Mrs Rosemary De Rougement.  Advocate Le Cocq disclosed his report to the other side and on Sunday his expert left Portugal in order to be in Jersey in time for the hearing. 

3.        On the second day of the trial Advocate Hoy attempted to file an expert's further report.  In it are two new matters.  The first is that the 1991 plan - I shall not use technical terms - was ineffective because it had not been published.  Consequently, it is alleged that none of the later decisions requiring planning and development are of any legality because of that fact.  The second point is that there was an objection to the registration of the contracts.

4.        It is necessary, apparently, for the plaintiff's expert to deal with these two points and they may be crucial and are quite outside the knowledge of this Court.  It appears that Mrs Correia cannot deal with the matters from Jersey, using the facilities of Ogier and Le Masurier, simply because she needs to return to the Algarve, as access to the land registry is a prerequisite to her second opinion and her colleague, with whom she works, is not well. The question of the 1991 contract is a matter solely for experts.  It is not, however, pleaded.  The question of the conveyancing matter, which was objected to before the Registrar, occurred, apparently, only last Thursday. 

5.        The only authority cited to us was the Rules of the Supreme Court: Order 38 Rule 4 and the duties and responsibilities of expert witnesses categorised there.  In particular, Advocate Hoy referred us to the Ikarian Reefer (1993) 2 Llloyd's Report 69 and 81 and in particular to item 6, which says:

"If, after exchange of reports, an expert witness changes his view on a material matter, having read the other side's experts report, or for any other reason, such change of view should be communicated through legal representatives to the other side without delay and when appropriate to the Court."

6.        We cannot see that we can derive much assistance from the case.  What we found most difficult is that here is a changing scenario where we have heard no expert evidence.  I would say in passing that Mr Da Silva was not called as an expert although he is clearly conversant with the complex conveyancing proceedings in the Algarve. 

7.        Two, apparently major, new points are raised; one not pleaded, one arising out of very recent events.  In our view, it would be facile to refuse the application by saying that this evidence is out of time, was not pleaded, or has taken the other side by surprise.  This is a case, the outcome of which is of no little importance to the parties concerned and we are determined, as best we can, to get the matter right.

8.        We have to ask ourselves how we can possibly ignore what might be a conclusive point in the opinion of the experts.  On that basis, therefore, we will continue to hear the evidence but we will adjourn before we hear the experts' opinions and the final addresses and that will have to be put off to a later time.  All the wasted costs of this adjournment must be paid by the defendant.

Authorities

RSC: O.38: r. 8/4/3.

The Ikarian Reefer (1993) 2 Ll R.69 00 81.