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Costs ordered against party that ignored efforts to discuss expert evidence

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Defendants who failed to engage in discussions about expert evidence, leading to the claimants having to go back to court, have been ordered to pay the costs of the hearing

Chief Master Marsh said parties must always co-operate in efforts to focus expert evidence as much as possible.

The ruling in UPL Europe Ltd & Anor v Agchemaccess Chemicals Ltd & Ors [2016] EWHC 2889 (Ch) followed an application relating to expert evidence in a case about the defendants’ trade in certain plant protection products.

The date for exchange of experts’ reports was 14 October 2016 but on 8 September 2016, Mishcon de Reya, acting for the claimants, wrote to the first and third defendants’ solicitors and suggested there was no longer any need for expert evidence.

They asked for detailed proposals regarding the defendants’ expert evidence, but there was no reply to two letters to that effect. A third letter said that if there was no response by 7 October, an application would be made seeking an order that the defendants could not rely upon expert evidence. Again there was no reply and the application was issued on 10 October.

Eventually the defendants’ solicitor served a witness statement saying that his clients were well advanced in the preparation of their expert evidence.

As a result, at the hearing the claimants did not press for the order they threatened; instead, the hearing allowed the court to give further directions on the expert evidence. The question was then who should pay the costs of the hearing.

The claimants asked for their costs on the basis that the application was necessary, they were successful and it was unreasonably contested.

The defendants sought either no order for costs or costs in case, saying the claimants had not obtained any of the relief they sought, they took an unduly aggressive stance and that the hearing, in the event, was in the nature of a case management hearing.

 Chief Master Marsh said: “In my judgment this is a plain case in which an order for costs should be made in favour of the claimants.

“The failure of the first and third defendants to answer the letters from Mishcon de Reya has not been explained and the characterisation of the claimants’ approach as unduly aggressive bears no relation to reality. The letters to which there was no response were measured and sensible.

“Furthermore, the claimants were encouraged to the view that expert evidence may not be needed. It was necessary for the issue to be brought to the court for a determination because there was a lack of engagement by the first and third defendants.

“It was then necessary for there to be a hearing in view of their apparent attempt to wrong-foot the claimants by producing expert evidence without any consideration of its scope and the methodology for its production.”

Master Marsh said: “In almost every case where expert evidence is permitted by exchange of reports, it is desirable for there to be discussion about the scope of the issues under consideration; and in a case where scientific analysis is needed an attempt should be made to agree what is to be analysed and by what method (unless the approach is well established and unlikely to be contentious).

“This is to ensure that, as far as possible, the reports are properly matched or, as it is sometimes put, they are not as if ‘ships passing in the night’. This engagement may incur modest additional cost but is likely overall to save costs. Whether the discussion is best held between the lawyers or between the experts (or both) will depend upon the case and the issues which arise.

“It is clear, however, that in every case the parties must co-operate in the process of producing expert evidence with a view to ensuring, as far as possible that the exercise is properly focused. The result should be that the reports are shorter and deal only with the core issues upon which expert evidence is required.”

 Here it should have been clear to the defendants that “active discussion was required before the experts produced reports and it is unacceptable that they  ignored letters and proceeded without any proper engagement”.

They also failed to comply with their duty under CPR 1.3 and he said the court was entitled to take their conduct into account when considering the costs of the application.

Though the primary relief sought was not pursued at the hearing, the master said the secondary relief sought in the alternative was not very different to the order made by the court. Making a “modest adjustment” to take this into account, he ordered the defendants to pay 85% of the claimants’ costs of the application. On summary assessment, this led to an order of nearly £15,000.