In Hinson v Hare Realizations Ltd (2), Spencer J dismissed an appeal against the County Court’s refusal to allow the claimant’s application to adjourn a trial and to rely on an acoustic engineering expert’s report, instead of the original single joint expert (SJE) report. Spencer J confirmed that the County Court had correctly applied the approach clearly set out in the decided case law.
Background and case history
In the County Court, the claimant, James Hinson, issued a claim in 2017 that he had been exposed to high levels of noise and had not been properly provided with any appropriate hearing protection or relevant risk training about exposure to high-level noise. The claimant had worked in the defendant’s machine shop for some ten years from the mid-1970s to the mid-1980s.
During the proceedings, the claim was allocated to the fast track. It is important to note that damages were limited to just £5,000. So proportionality on costs was always going to be an issue. Given this workplace injury type claim, expert input was essential for the purposes of the claimant proving his claim and establishing liability and for assisting the judge at trial. The claimant chose an SJE from a number of suitable experts. The defendant agreed the claimant’s choice of SJE and the parties agreed a letter of instruction.
In August 2019, the SJE report was provided to the parties but it did not support the claimant’s claim. The trial was originally listed in November 2019, but was vacated because no judge was available to hear it. The re-listed trial in December 2019 was also vacated because the claimant had been hospitalised. The claimant’s solicitor then became involved in informal discussions with an expert in a like case about noise-induced hearing loss (NIHL). As a result of these discussions, the claimant’s solicitor became alert to the possibility that the SJE’s report might be lacking.
The claimant sought and was given permission to put further questions to the SJE in early January 2020. Following this, such were the claimant’s concerns about the SJE’s report that by February 2020, the claimant obtained another expert’s report but failed to tell the defendant what had been done. The other expert was an acoustic engineer. This new expert’s report became available just three days before the new trial date. So the claimant made a very late application:
- To vacate the third trial date and have a new trial date listed but now lasting two days.
- For permission to rely on the new acoustic engineer’s evidence in place of the SJE.
- For the case to be reallocated to the multi-track, which would have had different costs consequences than if the case remained in the fast track.
The County Court applied the guidance in Bulic v Harwoods, and the recorder, exercising judicial discretion, dismissed the claimant’s belated application and the claim. The recorder acknowledged that the claimant had “lost confidence” in the SJE for understandable reasons. But the SJE’s report was still clear and provided analysis. So even though the claimant would be unhappy not to be able to rely on the alternative acoustic engineer, the defendant would rightly also be unhappy if yet another trial date was lost again with all the incumbent costs that go with that. More so when the SJE had been selected by the claimant in the first place. The recorder attached no blame to the claimant for the two earlier trial dates having been vacated.
The claimant appealed the recorder’s decision.
Decision
Spencer J emphasised that the recorder had to weigh up not only the parties’ respective interests, taking into account the all-important overriding objective, but also the interests of justice by ensuring that cases are determined speedily and at reasonable proportionate cost. Spencer J commended the recorder’s analysis and application of the relevant case law, and noted that she had regard to all the parties’ interests, including that the SJE’s technical evidence was key to the issues in the case and that the claimant had arguable reasons for not wanting to reply on the SJE’s report.
Spencer J pointed out that the recorder had also taken into account that the claimant’s application had been made at a late stage against the backdrop of two adjournments of case issued two years previously. Crucially, if a judge had been available in November 2019, the claim would have already been decided without the claimant having considered an alternative expert or making an application to abandon the SJE, who was ironically chosen by the claimant in the first place and the claimant had also been afforded the opportunity of putting questions to the SJE twice.
On the issue of costs, Spencer J also agreed with the recorder in that, if the application had been allowed, the case would have been re-allocated to the multi-track which would have increased legal costs significantly but disproportionately to the value of the claim. Regarding the claimant’s late application, the recorder was correctly mindful of a third trial date being lost with the consequence further costs, wasting court time and inconveniencing other court users and parties.
Implications for practitioners
This judgment confirms that the court’s approach to applications to abandon an SJE is set out in Bulic. So, if an SJE’s report is vital to a case, has technical aspects and one of the parties no longer has confidence in the SJE (even for valid or good reasons), it does not mean that the aggrieved party will be allowed to instruct another expert of their choice.
This case is also a clear example of the court upholding the overriding objective.
So, quite simply, clients should be advised very keenly about the implications of instructing an SJE, and practitioners should prepare clients for the real prospect of the SJE not being supportive. Ultimately, the court will want to observe the overriding objective and dispose of claims expeditiously and at proportionate cost.
