Summary
The Claimant claimed he had suffered a substantial loss due to the destruction of two consignments of poppy heads by the Defendants. The parties were given permission to rely on the written evidence of expert accountants. The Claimant made an application to the Court for the accountancy expert witnesses to give oral evidence at the trial and an application to adduce evidence prepared by his son.
Learning points
Learning points for instructing parties (especially litigants in person)
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When seeking permission to rely on expert evidence, make sure you consider (and explain to the Court) why the evidence you are seeking to adduce is reasonably required to resolve the proceedings.
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Make sure you comply with all Court orders and make any applications well before the trial date.
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Do not seek to adduce opinion evidence from a person who is not an expert witness.
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Do not seek to adduce opinion evidence that does not comply with the relevant procedural rules, practice directions and guidance.
Learning points for barristers
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When acting as a direct access instructed barrister, you may need to provide greater support and guidance to your client, than you would to a represented client, as they may not be familiar with the relevant rules and regulations for the provision of expert evidence.
Case
The Defendants seized, forfeited and then destroyed three consignments of poppy heads imported by the Claimant. The Court subsequently found that there was no relevant prohibition on the importation of the first two consignments and they were not liable for forfeiture at the time of their seizure. The Claimant was paid a sum of money equal to the value of the consignments at their time of their seizure, but claimed that his true loss was either £7m (Claim Form) or £14m (Schedule of Loss), and sought recover the losses in these proceedings.
The Expert Evidence
The parties were given permission to rely on the written evidence of expert accountants. The Claimant and Defendant both instructed experts as to quantum who produced individual reports and a joint statement. In the joint statement, the experts set out a number of alternative approaches that the Court might use to calculate the alleged loss. Within each alternative, the experts agreed on everything. They also agreed the method of loss calculation which should be adopted.
Application for accountancy expert witnesses to give oral evidence at trial
The Claimant made an application to call the authors of the forensic accountancy reports served by each party to give oral evidence. The Court found that, if it were necessary to determine quantum, deciding between the alternative approaches was a question for the Court and not a matter of expert evidence. Consequently, the judge dismissed the application.
The judge noted that the background to the request to call oral evidence was a very late application by the Claimant to adduce evidence from his expert witness in a supplemental report, despite the Claimant having had 2 years to prepare such a supplemental report. The Claimant had also failed to file his initial expert report in accordance with the Court order.
Witness statement from the Claimant’s son
The Claimant made an application to adduce evidence from his son in a document entitled “Financial Report Business Losses and Revised Compensation Claim”. This document sought to advance entirely new evidence as to the calculation of the Claimant’s alleged losses, resulting in different figures from those pleaded in the Schedule of Loss and Claimant’s expert accountant’s report. These figures were arrived at by different methods and using different underlying data.
The judge dismissed this application because:
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It was in substance opinion evidence but was not given by a person who is an expert witness. The Claimant’s son did not possess any expertise in these matters sufficient to qualify him to give opinion evidence about them.
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The document was not compliant with Part 35 of the Civil Procedure Rules (or the Practice Directions) in any respect. In particular, it was not signed, did not contain a Statement of Truth or an expert witness declaration, did not state the substance of all material instructions, and was not addressed to the Court.
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The proposed “expert witness” was not independent in any sense. The author was the Claimant’s son, a co-director of a company with the Claimant, and the document referred in places to “our claim”.
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The document strayed beyond the permissible issue which would be properly addressed in an expert accountancy report and in places made submissions of law.
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There was already extensive expert evidence before the Court in the form of expert reports and a joint statement. In the judge’s opinion, this further opinion evidence was not reasonably required to resolve the proceedings as required by Part 35.1 of CPR (“Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings”).
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The application was made very late – in fact, the judge was handed the application as he entered the Court – and no proper explanation was given for the late service.