Brendon International Limited v Water Plus Limited & Anor [2024] EWCA Civ 220

The Case

Between 2000 and 2019, the respondent had paid the appellants £150,000 in fees to discharge surface water into a “public” sewer. The respondent was seeking restitution of these fees on the basis that the sewer in question was a private, rather than a public sewer, and should not have been not subject to fees by the appellants.

The evidence of Mr Griffths

Mr Griffiths, who had 39 years of experience in the industry, was the wastewater network technical manager for one of the appellants. He provided evidence on the general characteristics which distinguish public and private sewers, as well details on the sewer in question.

The trial judge admitted Mr Griffths’ evidence to the extent that it comprised evidence of fact on the construction and usage of the sewer in question. However, he ruled that the remainder of Mr Griffths’ evidence was not admissible as opinion evidence under section 3 of the Civil Evidence Act 1972 (‘1972 Act’), because there was “nothing upon the basis of which [he could] conclude that [Mr. Griffiths] was qualified to give expert evidence, evidence on the point being entirely self-serving for the defendants, and not itself demonstrating expertise.”.

He also noted that Mr Griffiths’ evidence was not presented in accordance with Part 35 of the Civil Procedure Rules (‘CPR’).    

The law

Section 3 of the Civil Evidence Act 1972 provides,

“(1)     Subject to any rules of court made in pursuance of this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.

(2)      It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.

(3)      In this section “relevant matter” includes an issue in the proceedings in question.”

The 1972 Act does not define an expert or provide any specific test to determine whether a person is “qualified to give expert evidence” for the purposes of section 3. The Court of Appeal noted that there were a plethora of authorities that have sought to describe how courts might identify a person qualified to give expert evidence, drawing attention to the discussion in Hodgkinson and James, Expert Evidence: Law and Practice (5^th ed) at 1-011 et seq and highlighting the leading case of  R v Robb (1991) 93 Cr. App R 161 in which Bingham LJ stated:

“ … the essential questions are whether study and experience will give a witness’s opinion an authority which the opinion of one not so qualified will lack, and (if so) whether the witness in question is peritus [skilled] in Lord Russell’s sense. If these conditions are met the evidence of the witness is in law admissible, although the weight to be attached to his opinion must of course be assessed by the tribunal of fact.”

The Court of Appeal

The Court of Appeal found that the trial judge’s decision to exclude Mr Griffiths’ evidence, on the basis that he was not adequately qualified to give expert opinion within section 3(1) of the 1972 Act, could not stand.

The trial judge did not provide an adequate explanation for concluding the Mr Griffths, who had 39 years’ experience in the industry, was not “qualified to give expert evidence” within the meaning of section 3 of the 1972 Act. Further, his view that Mr Griffths’ evidence was “self-serving for the defendants” was an irrelevant factor in determining whether he qualified as an expert under section 3, with questions as to the independence of the person giving expert opinion evidence, and the impartiality of their evidence, going to weight not admissibility. It was for the trial judge to assess what weight (if any) to give to the opinions of someone who is not an independent expert instructed in accordance with the strictures and safeguards of CPR 35.

The court also found that the trial judge would have been incorrect had he excluded Mr Griffths’ evidence for failure to comply with CPR 35. These rules did not apply to Mr Griffths because he did not fall within the definition of an expert in CPR 35.2 as “a person who has been instructed to give or prepared expert evidence for the purpose of the proceedings.”

That said, the judge noted that the inherent power of the court (under CPR 32.1) to control its own proceedings would enable a court to exclude evidence which it considered was designed to circumvent or undermine CPR 35. “This might be the case, for example, if the court had given specific directions under CPR 35 for the production of a limited number of independent expert reports, but one party chose, in addition, to invite a factual witness who had some expertise, to volunteer his opinions on the very issues that the court had directed to be addressed by the experts under CPR 35.” However, there was no evidence that such directions had been given in this case.

Learning points

Learning points for instructing parties:

• In civil law trials in England and Wales, witnesses who are “qualified to give expert evidence” for the purposes of section 3 of the Civil Evidence Act 1972 can provide opinion evidence without being instructed under, and acting in accordance with, Part 35 of the Civil Procedure Rules.
• Questions as to the independence of the expert, or their accuracy or reliability, should go to weight rather than admissibility.
• The judge will assess what weight (if any) to give to the opinions of someone who is not an independent expert instructed in accordance with the strictures and safeguards of CPR 35.
• The court has the power to exclude such evidence if it considers that it is designed to circumvent or undermine Part 35.