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Adducing expert evidence at freezing injunction and security for costs hearings: further thoughts on BB Energy (Gulf) DMCC v Mohammed Hussein Al Amoudi and others

In an earlier blog post, I suggested that practitioners would be well advised to follow the view expressed by Andrew Baker J in BB Energy (Gulf) DMCC v Mohammed Hussein Al Amoudi and others, that permission is required to adduce expert evidence at an interlocutory hearing. The question has been asked whether that remains the case for freezing injunction and security for costs hearings, in light of the Commercial Court’s decision in Pipia v BGEO Group Ltd. I consider that it does.

Pipia was a security for costs hearing, for which the defendant/applicant adduced a witness statement attaching two memoranda from an expert on Georgian law. It was common ground that the approach to be adopted by the court towards the evidence was essentially the same for security for costs and freezing injunction applications (following Bestfort Developments LLP v Ras Al Khaimah Investment Authority). The claimant objected to the defendant’s reliance on this witness evidence, not on the basis that no permission had been sought (indeed, the claimant had itself adduced an expert report without previously seeking permission), but on the grounds that it did not comply with the formal requirements of CPR 35, since it had simply been attached to a factual witness statement (see paragraph 19).

Moulder J allowed the defendant’s expert report to be adduced, concluding from the decision in Bestfort Developments LLP v Ras Al Khaimah Investment Authority (and from Danilina v Chernukhin) that “a flexible approach is required. In the circumstances of such an application it is not just or proportionate to require expert evidence to be adduced which complies with the rules on expert evidence.”

It follows that the practical effect of Moulder J’s judgment in Pipia was to allow expert evidence to be relied upon even though permission had not been sought in advance. However, I do not think that Pipia can be said to create a separate regime for security for costs/freezing injunction hearings. There are several reasons for this.

  • Firstly, because the question of permission simply wasn’t raised in Pipia; the claimant’s only objection concerned the formal requirements of CPR 35, and the court did not raise the permission point of its own motion.
  • Secondly, BB Energy does not appear to have been cited to Moulder J in Pipia. On that basis, even if she had purported to decide the permission question (which I do not think she did), that decision would probably be per incuriam.
  • Thirdly, because the other authorities relied upon by Moulder J do not address the permission question:
    • The first of these was New Media Distribution Company Sezc Limited v Kagalovsky. That case concerned expert evidence adduced for a trial, rather than an interlocutory hearing. That expert evidence had, as in Pipia, simply been exhibited to a factual witness statement. Marcus Smith J held that it had to be adduced as a separate expert witness statement in accordance with CPR 35, and permission obtained. Since CPR 35 clearly requires permission for expert reports at trial, that result is unsurprising.
    • The second case was Al Nehayan v Kent. In that case, the defendant submitted expert reports that were compliant with CPR 35, but the claimant’s expert reports were deficient, in that two of three reports were not accompanied by a statement of truth, and none was accompanied by a statement recording the expert’s understanding of the requirements of CPR 35. The claimant’s evidence was disallowed. Just as in Pipia, the practical effect of Al Nehayan was that the defendant’s compliant expert report could be relied upon notwithstanding that permission had not been sought in advance. However, that point was not in issue; the court was only concerned with the deficiencies in the claimant’s non-compliant reports.

On that basis, it cannot be said that Pipia sets out a different approach to permission for freezing injunction/security for costs hearings, since that point simply wasn’t in issue. Further, as a matter of principle, it is doubtful whether a distinction between these kinds of hearings and other applications is sustainable. For example, the evidence that might be adduced in support of a security application (concerning the functioning of a foreign legal system/ease of enforcement abroad) may be substantially similar to the evidence that would be brought in support of a forum conveniens claim in a jurisdiction hearing. Neither security for costs hearings nor jurisdiction hearings are usually urgent. That contrasts with freezing injunctions, which often are urgent (and might therefore justify a more relaxed approach to procedural formalities).

In short, I remain of the view that practitioners would be well advised to assume that permission is required to adduce expert evidence at all types of interlocutory hearing, following BB Energy. Nonetheless, clarity on this point, either from the court or from the Civil Procedure Rules Committee, would be very welcome.

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