Plymouth South West Co-operative Soc Ltd v ASM
30/12/2004
On 9th December, 2004 His Honour Judge Peter Coulson Q C handed down an interim judgment in the Technology & Construction Court in the case of Plymouth South West Co-operative Society Ltd v ASM [2004] EWHC 2938 (TCC) which highlighted the difficulties the Court can find itself in if the parties’ expert witnesses are not fully prepared.
Despite previous orders having been made in pre-trial conferences, the Claimant’s expert quantity surveyor had not made his report sufficiently clear to the court’s (or the Defendant’s) satisfaction, nor had the court been provided with sufficient detail about the meeting(s) of experts which had been required by previous orders.
At one point in his judgment (at paras 29 & 30) the judge said “I do not think that it is unfair to say that those various statements by [the Claimant’s expert] really amount to no more than this. He is saying: “I am an experienced quantity surveyor. This is my estimate. You should accept it.” Therefore I do accept the point made by [the Defence Counsel] that that is an unsatisfactory basis for progressing litigation of this kind because one has only to imagine a witness giving that sort of answer in the witness-box, and not giving any further detail, for the difficulties inherent in this approach to become obvious.”
Later, at para 35, the judge says: “However, the detail of what needs to be done seems to me to be, at least in part, something that can be shaped only by [the defendant’s expert] I agree with [the Defendant’s counsel] that it is not for the Defendant's expert to tease out, in some slow and expensive process, precisely what the information is that ought to have been provided first time by [the Claimant’s expert]. On the other hand, it is clearly contrary to the overriding objective in the CPR for the position to be reached when claims might be struck out in circumstances where, as matters presently stand, I do not know what [the Defendant’s expert] says about the individual items. After all, if [the Defendant’s expert] is simply unable to deal with these items and cannot respond to the figures and considers that prejudice arises as a result, then he cannot possibly provide the necessary assistance to both his clients and to the court.”
As a result, and also because no agreed note of experts’ meeting(s) had been provided in accordance with CPR Part 35, the judge did not strike out the Claim, but imposed fairly stringent time requirements for the experts to sort themselves out. More than once in his judgment His Honour used the term “last chance saloon”.
This judgment also shows the current approach by the Technology & Construction Court and, indeed, the whole of the CPR, not to allow technical difficulties to stand in the way of justice but to take a robust attitude in striving to clarify the issues which are to be heard before it at trial.
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