Armchair Passenger Transport Ltd v Helical Bar Plc & Anor

This is an appeal against the order of His Honour Judge Ryland made on 16 August 2002 in which he set aside the order of His Honour Judge Zucker dated 27 June 2002 granting the Defendant permission to rely upon the expert report of Cohn McLean dated 20 June 2002. The evidence of Mr McLean was excluded on the basis that he had been employed in 1999 as Chief Executive of a company that was intimately involved in the action, that his evidence was therefore inappropriate as it was tainted by that connection and justice could not fairly be seen to be done if he were appointed expert in such circumstances.

It was argued before me that the Judge had considered the correct authorities, in particular Liverpool Roman Catholic Archdiocese Trustees Incorporated v Goldberg (No 2) [2001] 4 AER 950, although each party differed as to the precise nature of the test to be applied in deciding whether the evidence of an expert should be excluded before trial. It was accepted that Judge Ryland was making a case management decision, the Appellant contending that there was inadequate material to justify that decision and the Respondent contending that the decision was entirely justified upon the evidence.

After the conclusion of the hearing the decision of the Court of Appeal in Regina Factortame Limited & others v Secretary of State for Transport, Local Government and the Regions (No 8) [2002] 3 WLR 1104 was reported. This decision disapproved the observations made by Mr Justice Evans-Lombe in Liverpool Roman Catholic Archdiocese Trustees Incorporated, to which Judge Ryland had been referred and upon which he had relied. I permitted the parties to make further submissions in writing as to the impact of the decision in Factortame No 8. They did so by 8 November 2002.

The action arises out of a road traffic accident, which occurred on 25 January 2001. The Defendant’s bus collided with the First Claimant’s Range Rover 4.6 when it was being driven by the Second Claimant. Liability is in dispute. The First Claimant hired a substitute vehicle, whilst their own vehicle was unavailable, from Swift Rent-a-Car Limited to whom they had been recommended by their garage. The Second Claimant signed two separate rental agreements, the first in relation to a Jaguar XJ8, which was hired for one day at a cost of £378.35p inclusive of VAT and the second for a BMW 728i for twenty-two days at a cost of £8,111.03p including VAT. Each of these agreements provided for Swift to extend credit in respect of the hire charges until the conclusion of litigation rather than seeking to recover them from the First Claimant when they became due. In this sense the action is part of the ongoing credit hire litigation (see for example Dimond v Lovell [2002] 1 AC 384) though at present no credit hire issue arises directly in these proceedings.

The First Claimant claimed the above hire charges in the action, which was commenced on 4 October 2001. The Second Claimant claims, amongst other things, damages for personal injury. The defence denies negligence and alleges contributory negligence. In relation to the hire charges the defence alleges that the First Claimant’s car was safely driveable before repairs commenced and that for the short period during which repairs were being carried out a car could have been properly hired, but it should have been hired at a lower cost than those which were hired.

On 19 March 2002 District Judge Lightman allocated the claim to the Fast Track and gave directions for trial including a direction for Listing Questionnaires to be filed by 13 June 2002. A notice of trial date was sent out on 22 May 2002 indicating that the trial should take place on 27 August 2002. The Defendant, in its Listing Questionnaire, sought permission to rely upon an expert report of Cohn McLean of Autofocus on the basis that the report would provide factual comparable hire rates for prestigious vehicles for consideration by the Court when deciding whether or not the hire rate charge was reasonable. On 25 June 2002 Judge Zucker gave the Defendant permission to rely upon the report.

At that stage no written report from Mr McLean had been served by the Defendant. On 1 July 2002 the Claimants applied for Judge Zucker’s order to be set aside on the grounds that they had not been given the opportunity to challenge the inclusion of the Autofocus report as it had not been mentioned before the application in the Defendant’s Listing Questionnaire, the trial was due to take place on 27 August 2002, the report had still not been served, and as Mr McLean had previously been employed by Swift Rent-a-Car Limited his evidence was not independent. They relied upon the fact that Mr McLean was Chief Executive of Swift Rent-a-Car Limited from April to September 1999, had worked for Autofocus from February 2000 and therefore had knowledge of the internal matters of Swift Rent-a-Car Limited.

The Defendant served Mr McLean’s report on 10 July 2002. Judge Ryland heard the Claimant’s application on 16 August 2002 and set aside Judge Zucker’s order. He adjourned the matter to be relisted on the first open date after two months and permitted the Defendant to file and serve another experts report on the question of car hire rate, such report to be filed and served by 30 September 2002.

Mr McLean has worked in the vehicle rental market since 1968 when he joined Hertz UK Limited in a sales capacity. From 1982 he was Sales and Marketing director of Hertz UK Limited dealing with daily rental business. From 1984 to 1991 he was managing director of Hertz Leasing (UK) Limited and in 1999 became in addition Vice-President of European Leasing Operations. He then became managing director of a privately owned company with a substantial number of contract hire vehicles. He was in that employment from November 1991 to December 1998. In April 1999 he became Chief Executive of Swift Rent-a-Car Limited but his appointment was terminated after five months as ‘the changed strategic direction of the company was not compatible with personal ambitions.’ There was then a period of unemployment until February 2000 when he set up Autofocus of which he is Chief Executive. This organisation produces monthly generic surveys of the cost of hiring different vehicles, providing management support and information to the automobile industry. Mr McLean is said to be a market researcher and consultant who specialises in surveys of the self-drive hire market, selling such surveys to spot hire companies. He has given evidence for both claimants and defendants in the credit hire litigation. In particular he gave evidence in the case of Clark v Ardington [2002] 3 WLR 762.

Mr McLean contacted six companies in the London area in order to provide a report of self-drive car hire rates in the London area for the hire of a BMW 7 series or equivalent car for a period of twenty-three days with alternative rates for a BMW 5 series or similar car. He obtained the information by telephone. The results showed that the charges made by Swift were significantly higher than those obtained from the six other companies Mr McLean adjusted the figures he obtained in June 2002 by 5.2% to allow for inflation in prices since January 2001. He assessed the inter-relationship of seasonal demand, rate volatility and lengths of hire for prestige vehicles and concluded that the length of the First Claimant’s hire, at twenty-three days, would have been sufficiently long to eliminate any premium pricing through seasonal demand. He noted that Swift had not required the Claimants to provide insurance as they had their own fleet insurance. They were however charged £324.30p including VAT for collision damage waiver in respect of the two vehicles.

The Claimants have provided witness statements from each of the directors of Swift in identical terms, with the intention of calling simply the director who is available at the time of the hearing. In those statements it is said that Swift are the leaders in the prestige hire market and pride themselves on service and supply. They refer to alternative rates being disclosed by insurers but say that they are aware that on occasions ‘other hire firms advertise vehicles at uneconomical hire rates’ even though they are unable to satisfy that demand in the hope that they can convert customers from their desired vehicle to another perhaps undesired or even unsuitable vehicle.

During the course of argument, when he was being addressed by counsel on behalf the Defendants, Judge Ryland said: -

“I think it is highly undesirable for someone with a connection, even a past connection to a party, should give evidence as an expert. I am not surprised at this application. I think that the Courts – even before that decision, on its special facts, of Mr Justice Evans-Lombe – have looked to see whether or not the dictates of natural justice have been fulfilled. As long as I have been at the Bar and on the Bench, it has always been regarded as being highly undesirable to have an expert who has had a connection with one of the parties.

I am going to say that the report of Mr McLean is objectionable in that way, but I would also be very sympathetic to an application that the insurance company should be able to put in the expert report of somebody who is not objectionable in that way. If that can be done before the date of the trial, well and good. Otherwise, I would propose to alter the date of the trial and put it forward.”

In his judgment, the Judge noted that Mr McLean had been Chief Executive some two to three years ago ‘of a company that is intimately involved in this matter’. He noted that the Claimant objected because justice could not possibly be seen to be done if he was going to be the expert whose statement was going to be put in. He noted that this was a Fast Track claim and that whilst there was no permission to the Defendants to call Mr McLean he had been asked by the Claimants for permission to cross-examine him as to his past and his connection with Swift. Judge Ryland then concluded:–

“I have still reached the conclusion that the evidence of Mr McLean is inappropriate, because it seems to me that his evidence is tainted in that way. It is not that I particularly doubt the competence of Mr McLean, but the fact that there is this peculiar circumstance in this particular case, but I consider it does entail that justice cannot fairly be said to be seen to be done if he were to give his expert evidence by means of a report.”

The Judge rejected the idea of leaving the matter until trial and said that he had come to the clear conclusion ‘even before the cases and the CPR cases’ that it was ‘not right that a witness in Mr McLean’s position should be called to give evidence.’

When refusing permission to appeal he added that he considered that it had been established for a long time that a witness who had been in the position of Mr McLean was not a person who should be appointed to be an expert because justice could not be seen to be done if he was so appointed.

The Judge adjourned the matter so that the Defendant could obtain evidence of the amount of car hire charges in the locality of the car hiring. That decision has not been appealed.

In Whitehouse v Jordan [1981] 1 WLR 246 Lord Wilberforce said that:

“Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.”

The expert should provide independent assistance to the Court by way of ‘objective unbiased opinion in relation to matters within his expertise.’ The Ikarian Reefer [1993] 2 Lloyds Rep 81.

In Liverpool Roman Catholic Archdiocese Trustees Incorporated [2001] Lloyds Rep Prosecution 518 the claimant brought proceedings for professional negligence against a barrister specialising in tax. The Defendant wished to rely upon the expert evidence of another tax barrister in the same set of chambers as him, who was a friend of many years’ standing. In his expert report, the proposed expert said that he did not believe his relationship with the defendant would affect his evidence, but accepted that his personal sympathies were engaged to a greater degree than would probably be normal with an expert witness. At a case management hearing in the action Mr Justice Neuberger determined that any application to exclude expert evidence on the grounds that it was inadmissible should be raised as soon as possible but in that particular case it should be determined by the trial judge. If there was real doubt as to whether or not expert evidence ought to be admitted, the issue should be determined in favour of admissibility. He considered that a close personal relationship and a close professional relationship with a party did not mean as a matter of law, or even as a matter of fact, that the proposed expert was incapable of fulfilling the functions of an expert witness.

Mr Justice Evans-Lombe heard the matter which settled before he had handed down the draft judgment he had prepared He gave judgment on the expert evidence issue, concluding that the expert evidence should be disregarded on the grounds that the expert was unable to fulfil the role of an expert witness because of his close relationship with the defendant. By the admission that his personal sympathies were engaged to a greater degree than would probably be normal with an expert witness, the expert had rendered his evidence unacceptable on the grounds of public policy that justice must be seen to be done as well as done Mr Justice Evans-Lombe accepted that neither Section 3 of the Civil Evidence Act 1972 or the authorities excluded the expert evidence of a friend of one or other of the parties, but continued -

“However, in my judgment, where it is demonstrated that there exists a relationship between the proposed expert and the party calling him which a reasonable observer might think was capable of affecting the views of the expert so as to make them unduly favourable to that party, his evidence should not be admitted however unbiased the conclusions of the expert might probably be. The question is one of fact, namely the extent and nature of the relationship between the proposed witness and the party.” [2001] 4 AER 950 at 953.

These were the principal authorities which were before Judge Ryland at the application on 16 August 2002. On the basis of the Liverpool Roman Catholic Archdiocese Trustees Incorporated authority the Appellant submitted to me that the test was one of apparent bias, as it was in the case of a court or tribunal, (see Locabail (UK) Limited v Bayfield Properties & anr [2000] QB 451 and Porter v Magill [2002] 2 AC 357) and there was no evidence before the Judge to justify him excluding the experts evidence, particularly when the objecting party could not even say in which direction the bias tended. The Claimants/Respondents submitted that the test was not one of apparent bias but of independence or appropriateness as set out in the Liverpool Roman Catholic Archdiocese Trustees Incorporated and that there was ample material before the Judge to justify him excluding the evidence on that basis, or indeed on the basis that apparent bias was present.

The decision of the Court of Appeal in Factortame (No 8) [2002] 3 WLR 1104 was made shortly before the decision of Judge Ryland but not reported in the Law Reports until 18 October 2002 The parties accept that Factortame, although obiter on this issue, and the decision in Field v Leeds City Council [1999] CPLR 833 which was cited in Factortame (No 8), state the relevant law.

In Field the defendant wished to call, as an expert witness, a surveyor employed by them in their claims investigation section. The District Judge refused to allow that evidence on the grounds that the expert was not independent. The County Court Judge upheld this decision but the Court of Appeal held that the fact that the expert was employed by the council did not automatically disqualify him from giving evidence. The District Judge had not had enough material before him to enable him to assess what the issues in the case were likely to be, and the proposed expert’s ability to deal with those issues. Lord Woolf indicated that whilst there might be force in some cases in the submission that it would be virtually impossible for an employee to bring the necessary objectivity to bear on the issues of the case, the judge had to investigate the particular facts before him, and had the judge known that the proposed expert had a degree in construction management and substantial experience, it might have been quite reasonable for him to have accepted those qualifications. Lord Justice Waller said that the judge was clearly influenced by the thought that it was doubtful whether an employee could ever give independent evidence and that it ought to be made clear that there was no such assumption. The question whether someone should be able to give expert evidence should depend on whether:–

“(i)

it can be demonstrated whether the person has relevant expertise in an area in issue in the case; and (ii) that it can be demonstrated that he or she is aware of their primary duty to the Court if they give expert evidence.”

Lord Justice May said that there was no overriding objection to a properly qualified person giving opinion evidence because he was employed by one of the parties. The fact of his employment might affect its weight but that was another matter.

In Factortame (No 8) the Court of Appeal expressly considered Mr Justice Evans-Lombe’s observations in Liverpool Roman Catholic Archdiocese Trustees Incorporated including the passage at page 953 which I have cited above. These observations were disapproved. Lord Phillips MR said:–

“This passage seems to us to be applying to an expert witness the same test of apparent bias that would be applicable to the tribunal. We do not believe that this approach is correct. It would inevitably exclude an employee from giving expert evidence on behalf of an employer. Expert evidence comes in many forms and in relation to many different types of issue. It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence, but such disinterest is not automatically a pre-condition to the admissibility of his evidence Where an expert has an interest of one kind or another in the outcome of the case, this fact should be made known to the Court as soon as possible The question of whether the proposed expert should be permitted to give evidence should then be determined in the course of case management. In considering that question the judge will have to weigh the alternative choices open if the expert’s evidence is excluded, having regard to the overriding objective of the Civil Procedure Rules” (Paragraph 70).

The main issue in Factortame was whether an agreement between the claimants and the accountants Grant Thornton, that Grant Thornton would be paid 8% of the sum recovered as damages, was champertous. Grant Thornton had not acted as expert witnesses in the litigation themselves but provided litigation support and engaged independent experts The Court of Appeal held that if an expert held a significant financial interest in the outcome of the case, by for example, giving evidence on a contingency basis, such an interest was highly undesirable and only in a very rare case indeed would the court be prepared to consent to an expert being instructed under a contingency fee agreement. This was so, as in many cases the expert will be giving an authoritative opinion on issues that are critical to the outcome of the case.

Lord Phillips said -

“The public policy in play in the present case is that which weighs against a person who is in a position to influence the outcome of litigation having an interest in that outcome.”

The Court concluded that public policy was not affronted by the fact that Grant Thornton had agreed to act on terms that made their remuneration contingent upon the success of the proceedings given that they had no role to play at all on the issue of liability upon which the claimant had already succeeded, and were not themselves giving any expert evidence.

The following principles emerge from these authorities: -

The Civil Procedure Rules 1998 give the Court broad powers to control and limit evidence, including expert evidence. CPR 32.1(2) enables the Court to exclude evidence that would otherwise be admissible, provided that power is exercised in accordance with the overriding objective of dealing with cases justly. CPR 35.4 provides that no expert evidence is admissible without the Court’s permission whether in writing or oral. The expert’s duty to the Court overrides any obligation to the person from whom he has received instructions or by whom he is paid (CPR 35.3). The instruction of joint experts is strongly encouraged under the CPR (28 PD 3.9(4)).

Of particular relevance in this case is CPR 35.5 which states: -

“(1)

Expert evidence is to be given in a written report unless the court directs otherwise.

(2)

If a claim is on the fast track, the court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice.”

Allocation to the fast track is only appropriate under CPR 26.6(5) if the Court considers that the trial is not likely to last more than a day and that oral evidence will be limited to one expert per party and two expert fields. Fast track trial costs are limited under CPR 46.

The overriding objective under CPR 1.1 must be firmly borne in mind when case management decisions on expert evidence are made.

The Judge applied the test in the Liverpool Roman Catholic Archdiocese case; in the light of the Factortame decision this was too stringent a test. Mr McLean was aware of his duty to the court in view of his declaration to that effect in paragraph 3. He was capable of giving relevant expert evidence independently and in accordance with his duty to the court and the fact that he was employed by Swift, an interested party, some three years ago was not in itself a ground for refusing to admit his evidence. There is no material before the Court from which it could be concluded that he was not capable of giving his evidence independently and properly. Even if apparent bias still remained the right test there was no material before the Judge capable of supporting a contention that such bias was present. Whilst the decision of Judge Ryland was a case management matter, the decision he reached was not open to him upon the material before him or was obviously wrong.

Mr McLean’s report did not involve the interests or practices of Swift and any connection between him and Swift was therefore irrelevant. Swift was not a party to the proceedings and was entitled to recover its hire charges in full from the First Claimant. No reasonable observer would think the evidence of Mr McLean on the rates of hire of BMW cars was influenced by the fact that he had once been a senior employee of Swift, the company from which the First Claimant hired a BMW car.

There was no evidence before the Court that Mr McLean left on bad terms with Swift or had any dispute with them. There is no evidence that he had ill will towards them. He was one of a few qualified experts with the experience necessary to be able to determine what questions to ask in order to provide meaningful data. It was however no longer contended at the hearing before me that an alternative expert could no longer be found.

The test which the Judge appears to have applied, based upon his comments in argument and his judgment, would have the effect that any connection with a party should debar an expert from giving evidence. This is not only contrary to Factortame but would seriously restrict the reasonable use of expert evidence such as the treating consultant in a personal injury claim.

The pleadings as drafted do not permit the Defendant to raise the argument that the hire rate included irrecoverable services and should therefore be limited to recovery of a representative spot market rate (Dimond v Lovell). That fact reinforced the view that the evidence of Mr McLean was directed to giving rates of hire cars in London not towards the business practices of Swift.

As counsel for the Claimants/Respondents stated during argument before His Honour Judge Ryland it was not possible to say whether Mr McLean might be prejudiced for or against Swift. The Judge confused lack of independence with that which might give rise to a lack of independence. (See Mr Justice Neuberger Liverpool Roman Catholic Archdiocese [2001] Lloyds Rep PN 520).

Many of the Claimant’s arguments were directed to no expert evidence being given in a fast track claim such as this, rather than to whether Mr McLean should be permitted to give evidence. The Judge was prepared to admit expert evidence in the case and that decision has not been appealed.

The Judge applied the correct test to the facts of this particular case. He did not use the words ‘bias’ or ‘apparent bias’. Instead he approached the matter on the basis of whether justice could ‘fairly be said to be seen to be done’ and hence relied substantially on the decision of Lord Wilberforce in Whitehouse v Jordan. It cannot therefore be demonstrated that the Judge misdirected himself. The decision in Factortame undermined the foundation of the arguments advanced by the Appellants that the appropriate test was one of apparent bias. The decision does not however undermine Judge Ryland’s decision, based as it was, essentially upon Whitehouse v Jordan.

The Judge made his decision as a matter of case management and was clearly entitled to exercise his discretion in the manner that he did. His decision did not exceed the ‘generous ambit within which a reasonable disagreement is possible’ (G v G (Minors: Custody Appeal) [1985] WLR 647 at 652) and is not therefore susceptible to appeal. This is particularly so because it was a case management decision (Grupo Torras SA & anr v Al Sabah & ors [1997] EWCA (Civ) 1301).

The test in cases of disputed expert evidence was not the same as the apparent bias test for the judiciary or tribunals, but even if it was there was material which would have enabled a finding of apparent bias by Judge Ryland on the facts of this case. Mr McLean was not an independent witness nor was it appropriate that a chief executive who would have been intimately involved in all of Swift’s business, including its rate setting, should give evidence that its rates were outside the normal range of the market i.e. unreasonable. His report strayed outside his instructions by commenting on the charge for collision damage waiver which he appeared to regard as inappropriate, when not asked to comment upon that aspect. Nor did he have the appropriate material before him upon which to base such a criticism. He had not seen the fleet policies and had overlooked the fact that collision waiver damage provides cover beyond that of a comprehensive insurance policy so as to include, for example, the liability of the hirer to continue to pay hire charges in the event that the hire vehicle is damaged until it is repaired or replaced. This suggests that he was acting as an advocate against Swift seeking to reduce the sum recovered by the Claimants at least by the insurance element. He used his knowledge acquired at Swift in choosing other providers of prestige vehicles.

The fact that he left after five months, as the direction of the company was not ‘compatible with personal ambitions’ suggests that he left in unhappy circumstances. Those could not be discussed as there was a confidentiality agreement between the parties. The fact that he was unemployed between September 1999 and February 2000 supported this inference.

His evidence was not therefore independent and was quite rightly excluded. This is particularly so, the Appellants submit, in view of the fact that this is a fast track case. Expert evidence should, in such a case, be by written report rather than oral hearing under CPR 35.5(2), whereas in this particular case it is inevitable that cross-examination will have to be permitted so that Mr McLean’s true independence can be explored. A large part of his cross-examination would go to personal matters which renders it objectionable as in a normal case independence would be taken as read. It would therefore lead to a subversion of the fast track procedure for his evidence to be admitted. It would be extraordinary if the directors of Swift had to face Mr McLean either by his report or across the Court.

The Respondents submit that if their primary submission is incorrect and the Judge did apply the wrong test, the same result in any event follows and Mr McLean’s evidence should be excluded. The Court of Appeal in Factortame said that the broad range of factors referred to in the overriding objective in CPR 1 should be considered when making a decision on the admissibility of expert evidence. Here, the Appellants had kept their expert report up their sleeve, mentioned it only in the listing questionnaire, still failed to disclose it and then effectively sought to present its use as a fait accompli. The Respondents were put at a disadvantage in meeting the Appellants’ late case and the parties were not therefore on an equal footing. Expense had been increased by the failure to raise the expert evidence issue earlier, and would be further increased if oral expert evidence was to be allowed. The case does not raise any issue of general importance, nor is it complex, and therefore does not justify the admission of the evidence of an expert who will have to be called to give oral evidence. There has been substantial unexplained delay by the Appellants, so that the case is not being dealt with expeditiously. The Court’s resources have already been used excessively. All these factors under the overriding objective (CPR 1.1(2)) demonstrate, in addition to the matters already set out, that even if the Judge applied the wrong test, the evidence should still be excluded.

The decision of the Court of Appeal in Factortame makes it clear that the test of apparent bias applicable to a court or tribunal is not the correct test in deciding whether the evidence of an expert witness should be excluded. The apparent bias test was, it appeared, the test which Mr Justice Evans-Lombe had applied in Liverpool Catholic Archdiocese Trustees Incorporated and hence his observations were disapproved. Such a test would, as Lord Phillips said in Factortame inevitably exclude an employee from giving expert evidence on behalf of an employer, a restriction on the calling of expert evidence which does not exist as was confirmed in Factortame and in addition in the case of Field.

It is not the existence of an interest or connection with the litigation or a party thereto, but the nature and extent of that interest or connection which determines whether an expert witness should be precluded from giving evidence Hence, once such an interest or connection is ascertained a decision must be made promptly as a matter of case management as to whether the expert’s evidence is precluded or not.

The submissions before Judge Ryland relied upon the decision of Mr Justice Evans-Lombe and the Judge referred to that decision in the course of argument as relevant to natural justice (Judgment page 16) In his judgment he refers on two occasions at page 26 to justice being seen to be done. Mr Justice Evans-Lombe in paragraph 12 of his decision refers to the public policy that justice must be seen to be done as well as done, and cites the decision in Whitehouse v Jordan. I am satisfied that Judge Ryland had the decision of Mr Justice Evans-Lombe in Liverpool Roman Catholic Archdiocese Trustees Incorporated firmly in mind when making his decision as well as the decision in Whitehouse and was, accordingly, applying the test of apparent bias even though he did not use those words in terms He did however reach the conclusion that the evidence of Mr McLean was inappropriate because his evidence was ‘tainted in that way’ by which he meant tainted by his connection with Swift as set out at the top of page 26 of his judgment. The use of the word ‘tainted’ with its connotations of discolouring suggests that he did indeed have apparent bias in mind but no textual analysis is necessary here as the tenor of the judgment and the submissions made to him make it clear that this was the basis of his decision.

It was submitted to him that on the public policy ground justice had to be seen to be done as well as done and that was ‘on all fours with the bias cases’. The essence of the Claimants/Respondents’ submission before Judge Ryland was that a former director of Swift could be not be called to give evidence as to the reasonableness of the rates that they charged, if justice was to be seen to be done. That was so even though it was not known to which party, if any, the evidence might be favourable. The requirement of justice being seen to be done meant that his evidence should not be admitted ‘however unbiased his conclusions might probably be’. ‘Mr McLean cannot be seen to be fair in this case, even if he is scrupulously fair as a matter of fact.’ (Page 12).

The Judge intervened during the course of argument to say that he considered it highly undesirable that someone with a connection, even a past connection to a party should give evidence as an expert. He referred to the need for justice to be seen to be done even though he did not particularly doubt the competence of Mr McLean. When refusing permission to appeal he said that:-

“It has been established for a long time that a witness who has been in the position of Mr McLean is not a person who should be appointed to be an expert in these circumstances, because I do not consider that justice can be seen to be done if he is.”

It is important to note from the submissions made by the parties before Judge Ryland, and from the Judge’s judgment that no attempt was made to analyse Mr McLean’s report or say that it showed animus or bias toward Swift. This is in contrast to the submissions which have been made to me in the course of this appeal.

I am satisfied that Judge Ryland decided to exclude Mr McLean’s evidence not upon the nature and extent of his connection and whether that rendered him insufficiently independent to be able to comply with the expert’s duty to the court, but upon the basis that the fact of his connection with Swift alone meant that justice could not be seen to be done if his expert’s report was submitted in evidence in the case.

On the basis of the decisions in Factortame and Field this is the wrong test. The Judge’s approach suggests that he would have excluded an employee from giving expert evidence on behalf of an employer for the same reasons, namely that justice could not be seen to be done if he were permitted to give such evidence. This approach is specifically disapproved in Factortame and Field.

I conclude therefore that the Judge did apply the wrong test in this case and that his decision cannot stand.

I am invited by Mr Ian Burnett QC to deal with the admissibility of Mr McLean’s report if I decide that Judge Ryland applied the wrong test. Mr Anthony Edwards-Stuart QC on behalf of the Appellant/Defendant submits that the decision of Judge Ryland cannot stand and implicitly accepts that it would be appropriate for me to consider the matter. I do so.

I have considered Mr McLean’s report and the oral and written submissions made to me. I am satisfied that Mr McLean has the relevant expertise to deal with the hire rate issue in this case. It appears that he is one of the leading experts in this field, having given evidence in more than one of the major credit hire cases. Much of his work involves market research and consideration of comparable rates in the daily rental business. His experience is also substantial in the field. His report demonstrates knowledge and expertise.

He makes an expert witness declaration in paragraph 3 of his report which demonstrates that he is fully aware of his duty to the court and the fact that it overrides any obligation to the party who engaged him. Prima facie he satisfies that test. Does his connection with Swift place such doubts upon his ability to abide by that declaration that he should not be permitted to give expert evidence in this case?

He has no interest in the outcome of the case as is confirmed in paragraph 4 of his report. Nor, in my judgment, is there anything in his report which supports the contention that he bears ill will towards Swift and is exercising that in the writing of his report. His report is essentially factual and where he comments upon the level of collision damage waiver cost he is dealing with an aspect which it is proper for such an expert report to cover. He did have copies of the rental agreement before him and was therefore able to calculate the cost of collision damage waiver and its relevance from clause 7 of the terms of hire. The fact that he did not have the fleet insurance policy in front of him when making his comment may go to the merit of the point made in his report at paragraph 5 but does not support the contention that the comment shows animus towards Swift. It is inevitable that any expert will use his knowledge of the industry and particular companies in reaching his expert opinion, and there is nothing in Mr McLean’s report which suggests that he has wrongly used any information he might have had from Swift.

I do not accept the Respondents submission that Mr McLean’s Curriculum Vitae leads to the irresistible inference that his departure must have been unhappy or such as to create animosity. There is insufficient evidence before the Court for any such inference to be drawn. Even if Mr McLean and Swift did not achieve a satisfactory working relationship, his parting may nevertheless have been on amicable, or at least acceptable terms. No inference can be drawn either from the period of time after he left Swift and before he commenced trading with his own company Autofocus. Such a period of time could at least in part have been taken up in setting up his new organisation. There is simply not enough evidence before the Court to suggest that Mr McLean is driven by ill will or other improper motive to seek to demonstrate that the company for which he once worked and helped to set the rates is now charging unreasonable rates.

On the basis of the material before the Court there is no proper basis for concluding that Mr McLean was unwilling to or would be unable to abide by his duty to the Court. There are however other factors which need to be taken into account in deciding whether or not it is appropriate that Mr McLean should be permitted to give expert evidence in this matter. Is it appropriate to permit such evidence to be given in view of the overriding objective and the fact that this is a fast track case? There is no doubt that the Defendant failed to disclose Mr McLean’s report when they should have done, and that this created difficulty for the Claimants who had to make their application to set aside Judge Zucker’s order without even having seen the proposed report. This put them at a temporary disadvantage but the report was before Judge Ryland and had been served on the Claimants before the hearing of 16 August 2002. It may be correct that additional expense has been incurred by reason of the Defendant’s conduct and that the action will become more expensive if oral expert evidence becomes necessary. If however the figures submitted by any expert in relation to hire charges were to be substantially different from those charged by Swift an order for cross-examination might well have been made in any event. The costs of the action have been and are likely to be increased by the whole exercise in relation to Mr McLean’s expert evidence. Nevertheless this is a matter which can be dealt with by way of costs when it comes to the conclusion of the proceedings.

On balance I consider that the procedural failures by the Defendant and the additional costs generated by pursuing this application do not justify excluding the expert evidence. Such procedural failures and unnecessary increase in costs can be dealt with at the conclusion of the proceedings, if necessary, by way of special costs orders.

The Respondents’ submission that the Appellants’ insistence upon Mr McLean being their expert witness in this case has the effect of subverting the fast track procedure carries considerable weight in view of the fact that some part of his cross-examination will be based solely on his potential lack of independence. I am however conscious of the fact that Judge Ryland considered this case was suitable for expert evidence and that part of his decision is not appealed against. Once that decision is made any expert who gave significant challenge to Swift’s figures would probably have to be cross-examined, albeit at less length if his independence was not challenged. Again, this is a reason for dealing with the matter by way of an order of costs rather than by excluding the evidence.

Whilst I am satisfied that Mr McLean has the relevant expertise to give evidence and that he is aware of his duty to the Court and willing and able to fulfil that duty, the overall exercise of discretion as to whether he should nevertheless be precluded from giving such expert evidence is not straight forward. I have sought to weigh the relevant factors under the CPR and concluded that he should not be so precluded. His evidence will no doubt have to be tested by cross-examination and the weight to be attached to it will be determined by the Court.

It is always desirable, as the Court of Appeal said in Factortame that an expert should have no actual or apparent interest in the outcome of the proceedings. Expert witnesses should be chosen accordingly so that the difficulties which have arisen in this case can be avoided. I recognise however that there are fields in which only a limited number of experts are available and that those who are pre-eminent may have direct work experience in the field or with competitors which might at first sight be thought to threaten their independence. Such cases should be rare but when they arise should be dealt with in accordance with the principles in Factortame and Field. If it transpires in this particular case that the weight to be attached to Mr McLean’s evidence is found to be limited by reason of his connection with Swift this will no doubt sound heavily in costs against the Defendant.

For the reasons set out above I allow the appeal against the decision of Judge Ryland of 16 August 2002 and re-instate the order of Judge Zucker dated 27 June 2002 granting the Defendant permission to rely upon the expert report of Colin McLean dated 20 June 2002.