Challenges by litigants to the admissibility of an opponent expert’s testimony are a common feature of modern litigation. It is clear that the success or otherwise of such challenges will turn on the principle of judicial discretion and recent case law illustrates that the judiciary will not be receptive to applications which result in only parts of an expert report being placed before them for consideration.
An English High Court decision provides a stark warning to any party considering an attempt to remove part of their opponent export’s report prior to trial. In A v B Mrs Justice Moulder refused the defendant’s application to declare inadmissible part of an expert report and a joint expert report. The case concerned the defendant’s challenge to the claimant’s claim for an arbitral award. Expert reports had been prepared and the defendant argued that part of the contents of those reports should be ruled inadmissible.
It was held that the principles in Rogers v Hoyle are of general application. In that case, the Court had refused the defendant’s application for a declaration that the use of an Air Accident Report was admissible because it was not an expert’s report under the Civil Procedure Rules. That application failed with the Court ruling that the whole report was admissible as evidence and that it was a matter for the Judge to make use of the report as she saw fit. The decision was upheld by the Court of Appeal who confirmed that the correct approach was for the whole document to be before the Court and for the Judge to take account of those parts of the report that reflected expertise and to disregard the rest.
The defendant in A v B argued that the decision in Rogers v Hoyle should be distinguished. That argument was not accepted by Mrs Justice Moulder who stated:
“… there is nothing to be gained, except in very clear cases, from excluding or excising opinions where the expert’s report opines on inadmissible matters; such an exercise is unnecessary and disproportionate.”
The message is clear and understandable. Judges want to be given full expert reports and retain a discretion to rely upon those sections they deem relevant.