Bulic v Harwoods & Ors

The Appellant, Mr Zvonko Bulic, claimed damages in the Brighton County Court in relation to the serious mechanical failure of the engine of his Jaguar vehicle on or about 23 April 2009. The central and arguably determinative issue in the case is why the engine failed. He contends that it seized up as a result of inadequate service from the First Defendant’s garage, although it is also alleged that there was a design fault with the diesel particulate filter (“DPF”) which had led to a dilution of the engine oil. The Defendants, all of whom were represented before me by Mr John Brennan, wish to argue that the failure was more likely to have been caused by an unidentified third party over-filling with engine oil. It can thus be seen that the resolution of these primary issues is likely to turn upon relatively technical expert evidence.

This appeal is against a case management decision by His Honour Judge Simpkiss on 13 June 2012 as to whether the Claimant should be permitted to adduce his own expert evidence rather than being compelled to accept the opinion of a single joint expert (as had earlier been agreed).

The background can, I hope uncontroversially, be summarised in this way. Most diesel vehicles are nowadays fitted with a DPF in the exhaust system, the purpose of which is to ensure compliance with regulations governing emissions. The device isintended to collect particulates that would otherwise be discharged into the atmosphere. In order to avoid such devices becoming blocked with the particulates, there is provision for “regeneration”. It is the Appellant’s case that the DPF in his vehicle was designed in such a way as to trigger activeregeneration once the temperature in the exhaust reached a certain level. He contends that it is necessary for the temperature to be maintained for a prolonged period to ensure that all collected particulates will be burnt off. One view is that this can be most readily achieved when the vehicle is driven at speeds in excess of 40 mph over a period of at least 20 minutes.

One snag, as I understand it, is that the process requires a small amount of diesel fuel to be introduced into the filter which can in certain circumstances work its way into the main engine. This may occur, for example, if the diesel introduced into the DPF has not been fully burnt off in the process of regeneration. Once engine oil and diesel fuel become mixed, levels of oil viscosity can be significantly reduced. This in turn may lead to severe internal damage to the engine through lack of lubrication. A linked problem is that fuel dilution may also lead to the volume of liquid within the engine rising above the maximum recommended level.

An application was made to Judge Simpkiss on behalf of the Appellant for permission to call his own expert evidence from Dr Horace Stinton and for the single joint expert, Mr Cookson, to be correspondingly disinstructed. In the event that such permission was granted, it was recognised that the Defendants should be allowed to rely upon Mr Cookson as their own expert.

It is explained in the witness statement of Mr Petrie that there were, essentially, two reasons underlying the Appellant’s application. First, he had formed the view in the light of Dr Stinton’s report that Mr Cookson lacked the requisite expertise and had provided an inadequate analysis of the engine failure. Secondly, it was contended that there was apparent bias on Mr Cookson’s part having regard to his acceptance of instructions from Jaguar Land Rover after he had been instructed for the purposes of this case. Each of these reasons played a part in the Appellant’s loss of confidence in Mr Cookson.

The trial had been listed for the following week, commencing on Monday 18 June 2012. The Judge dismissed the application, while making it clear that his decision had not been determined by the imminence of the trial. Once an application for permission to appeal had been lodged on 15 June, Edwards-Stuart J granted an application for interim relief that day whereby the trial was adjourned.

Judge Simpkiss had rejected all the arguments of the Appellant, including that founded on perceived bias on Mr Cookson’s part. Permission was given to rely on three grounds of appeal, but specifically not that relating to bias. Mr Murray, however, appearing on the Appellant’s behalf, renewed his application for permission to rely additionally on that ground.

The appellate jurisdiction I am called upon to exercise is by way of review and not rehearing. I have to be satisfied that the Judge was “wrong”. I need to ask if he erred in law, or took into account something that was irrelevant or vice versa, or whether he stepped outside the ambit within which there is room for reasonable disagreement in the exercise of a discretion. There is a significant hurdle to surmount, as Mr Murray recognised at the outset of his submissions.

Four grounds of appeal were developed before me. The first ground is that the Judge erred in law in applying an inappropriate gloss to the “test” which it is submitted the Court of Appeal laid down, in the context of the disinstruction of joint experts, in Daniels v Walker(Practice Note) [2000] 1 WLR 1382. Second, there is the argument in respect of which Mr Murray renews his application for permission, namely that of perceived bias on the part of Mr Cookson. It is said that the Judge erred in this respect by applying a test of actual bias and was wrong to reject the submission based on apparent or perceived bias. The third ground was that the Judge erred in the exercise of his discretion by dismissing the concerns of Dr Stinton regarding the technical inadequacy of Mr Cookson’s report and his supposed lack of relevant expertise. Finally, there is the fourth ground to the effect that the Judge erred in the exercise of his discretion in his assessment of this litigation as not being sufficiently “substantial” to justify dispensing with a single joint expert.

There was much argument on whether the Judge had applied the right “test”. In developing the first ground, Mr Murray placed reliance upon the judgment of Lord Woolf in Daniels v Walker at p.1387D-E:

“ … Where a party sensibly agrees to a joint report and the report is obtained as a result of joint instructions in the manner which I have indicated, the fact that a party has agreed to adopt that course does not prevent that party being allowed facilities to obtain a report from another expert or, if appropriate, to rely on the evidence of another expert.

In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue. It is to be hoped that in the majority of cases it will not only be the first step but the last step. If, having obtained a joint expert’s report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert’s report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.”

Significance has been attached in the course of argument to the words “substantial case such as this” and also to the phrase “reasons which are not fanciful”. Mr Brennan argues that Judge Simpkiss was entitled to hold that this case was not sufficiently “substantial”, by comparison with the circumstances in Daniels v Walker, to justify Mr Cookson being disinstructed. Mr Murray, on the other hand, points to the phrase “not fanciful” in suggesting that the Judge applied too strict a test when assessing the Appellant’s qualms about Mr Cookson’s reasoning and expertise.

This passage in Lord Woolf’s judgment was cited by the Judge and he clearly took it into account. He also referred to other decisions, including Cosgrove v Pattison [2001] CPRLR 177, a decision of Neuberger J (as he then was), and Kay v West Midlands Strategic Health Authority, unreported, where there was a full analysis of the relevant authorities by His Honour Judge MacDuff QC (as he then was). A passage from this judgment was quoted by Judge Simpkiss as follows:

“Where a party requests a departure from the norm and makes what one can term a Daniels v Walker application, all relevant circumstances are to be taken into account but principally the court must have its eye on the overall justice to the parties. This includes what I have called the balance of grievance test. The application will only succeed in circumstances which are seen to be exceptional and to justify such a departure from the norm.”

It was with reference to these words that Judge Simpkiss observed that Judge MacDuff was there setting out the “correct test to adopt” and that he did not regard it as being in any way inconsistent with the passage cited above from Lord Woolf’s judgment.

It was this approach which has been criticised by Mr Murray on the basis that he regards the words of His Honour Judge MacDuff as giving rise to a “narrower test of exceptionality”, because in order to obtain another expert report an applicant’s reasoning should only have to pass the test of being “not fanciful”. The Judge should have asked, therefore, according to Mr Murray, not whether the circumstances were “exceptional” but merely whether the Appellant’s concerns about Mr Cookson’s evidence could be characterised as “fanciful”. He argues that there was thus an error of law and that the Judge should have applied Lord Woolf’s “test” without adding the “varnish” to be found in Judge MacDuff’s words.

Reference was also made to another decision of the Court of Appeal, to which Lord Woolf was a party, in Peet v Mid-Kent Healthcare Trust (Practice Note) [2002] 1 WLR 2010. This too had been fully considered by Judge MacDuff in Kay. It was a personal injury case which gave rise to the issue of whether or not a conference could be conducted by the claimant in the presence of the joint experts without the consent of the defendant. The facts are clearly a long way from the present circumstances, but in the course of the judgments some relevant remarks were made more generally about the instruction of single joint experts. In particular, at [28], Lord Woolf CJ made the following comments:

“ … The starting point is: unless there is reason for not having a single expert, there should be only a single expert. If there is no reason which justifies more evidence than that from a single expert on any particular topic, then again in the normal way the report prepared by the single expert should be the evidence in the case on the issues covered by that expert’s report. In the normal way, therefore, there should be no need for that report to be amplified or tested by cross-examination. If it needs amplification, or if it should be subject to cross-examination, the court has a discretion to allow that to happen. The court may permit that to happen either prior to the hearing or at the hearing. But the assumption should be that the single joint expert’s report is the evidence. Any amplification or any cross-examination should be restricted as far as possible. Equally, where parties agree that there should be a single joint expert, and a single joint expert produces a report, it is possible for the court still to permit a party to instruct his or her own expert and for that expert to be called at the hearing. However, there must be good reason for that course to be adopted. Normally, where the issue is of the sort that is covered by non-medical evidence, as in this case, the court should be slow to allow a second expert to be instructed.”

I cannot help thinking that the argument has been diverted on to a detailed analysis of various “tests” as though some of the phrases used were of statutory significance. I believe that Lord Woolf would be surprised to find that such an apparently legalistic approach was being adopted 13 years after the advent of the CPR. No straitjackets were intended. In referring simply to requiring a “good reason”, he was clearly recognising a need for flexibility. What is a “good reason” in one case may prove quite inadequate in another. None of these judicial observations, uttered in the context of applying broad principles to very specific factual circumstances, should detract from the breadth of the court’s discretion or from the general terms in which the guidance was given in the earlier cases.

The importance of the overriding objective was often emphasised. Judge MacDuff, for example, referred to “overall justice to the parties”. Moreover, Lord Woolf stressed the point in Daniels v Walker at p.1386H:

“If, having agreed to a joint expert’s report a party subsequently wishes to call evidence, and it would be unjust having regard to the overriding objective of the Civil Procedure Rules not to allow that party to call that evidence, they must be allowed to call it.”

What represents justice between the parties will very much depend upon the facts of each case. For that reason, it can be distracting to focus too analytically on the reasoning in other cases, however authoritative, where the facts were not truly comparable. There are different factors to be taken into account and the importance of each is likely to vary according to the particular facts. For example, the saving of time and money is likely to assume greater significance in inverse proportion to the centrality of the issues. Where the court is concerned with a relatively “peripheral” issue, as in Kay, it is likely to be only in unusual circumstances that the services of a single joint expert will be dispensed with: see e.g. at [35]-[36].

So too, the court is less likely to be ready to dispense with a single expert where the evidence is of a non-technical nature, as Lord Woolf explained in the last sentence of the passage cited above from Peet. (I part company with Judge MacDuff where he held that Lord Woolf used “non-medical” when he must have intended to say simply “peripheral”. I will take the word at face value.)

Here, by contrast, the issue to which the expert evidence goes is far from peripheral. It is fundamental to the resolution of the main issue between the parties. It is also technical.

Mr Murray has highlighted the risk, in cases where expert evidence goes to a central issue, that circumstances may arise where the enforced reliance upon a single joint expert will result effectively in trial by expert. If the court is confronted by only one expert opinion on (say) the cause of a road accident, or of a brain haemorrhage occurring in the course of surgery, generally it will be able to reach only one conclusion. The judge’s role may thus be reduced to rubber stamping the expert report. Also, if the bar is raised too high, for litigants who lose faith in a single joint expert, there is a risk that this will become a significant disincentive to those who would otherwise be inclined to take the “first step” recommended by Lord Woolf in Daniels. They may think it prudent to insist upon separate experts from the outset.

It is naturally with considerable hesitation that I find myself in disagreement with this very experienced Judge, but I have concluded that he allowed himself to become too focused on the “exceptionality” test attributed to Judge MacDuff in Kay, without making sufficient allowance for the fact that here, unlike Kay, the issue in question is not “peripheral”: see e.g. Kay at [51].

Moreover, the court is likely to obtain more assistance from comparing two experts on technical matters than would be the case, for example, in Kay, where the court was concerned with the level of IT provision that was required to assist the young claimant. The debate was essentially on the question of whether he required specially designed packages or could manage with products “off the shelf”. Issues of that kind involve matters of personal judgment, discretion and general impression based on experience. Identifying the cause of engine failure is a different exercise.

I turn to the issue of apparent bias, which Mr Murray sought to resurrect despite its rejection both by Judge Simpkiss and by Edwards-Stuart J. I listened to his careful argument, advanced persuasively, but I remain unconvinced. I cannot accept that there would be any reasonable apprehension of bias in the case of an expert in Jaguar engines merely because he finds himself instructed both by claimants and defendants. He is not involved in any retainer or an especially “cosy” relationship of some kind with Jaguar. Indeed, I gather from the evidence that Mr Cookson has acted on instructions from claimants more frequently than from defendants.

Reference was made to the protocol for the instruction of experts. As the Judge observed, it might have been better if Mr Cookson had notified the parties in this litigation that he had subsequently received instructions on behalf of Land Rover but, as he put it, this was “not at all a significant matter in the context of this case”. I agree with him. I therefore refuse permission to resurrect ground two.

When considering the third ground, I think it helpful to have in mind the “balance of grievance test” referred to by Judge MacDuff in Kay. In Dr Stinton’s supplemental report of 29 May 2012 there are a number of criticisms to be found of Mr Cookson’s reasoning and technical expertise. I can well believe that the Claimant would have a real sense of grievance if he were barred from introducing them at trial and having them properly evaluated. That would involve detailed consideration in the light of cross-examination. Judge Simpkiss addressed the criticisms with some care and made an assessment of the comparative skills and methodology of the two experts, but I believe that would have been more appropriately carried out by the trial judge, having had the advantage of assessing the two witnesses when giving their evidence.

I will confine myself for present purposes to just three examples to be found in paragraphs 15-17 of the 29 May report:

(a)

“In my opinion Mr Cookson shows a lack of understanding of the very basics of turbochargers and turbocharging and, from his interpretations, a lack of understanding of the combustion of fuels.”

(b)

“Mr Cookson’s explanations demonstrate a clear lack of knowledge and understanding of the fundamental principles of operation of a diesel engine and of the differences between spark ignition (petrol) engines and diesel engines.”

(c)

“It appears that Mr Cookson is at times not clear himself regarding the properties of diesel fuel.”

Furthermore, at paragraphs 42-45, he significantly undermines the Defendants’ central thesis about the over-filling of the engine. He says that Mr Cookson’s diagnosis in this respect is not consistent with the evidence.

Dr Stinton may, of course, on closer examination be proved wrong, and the Judge’s assessment of him as being somewhat “academic” in his approach may be vindicated, but I think that the Claimant’s sense of grievance would be quite understandable if he has to go through a trial of the critical issue on liability while still being barred from having these points properly investigated.

As to the fourth ground of appeal, it is obviously not possible to provide a bright line boundary between cases that are “substantial” and those which are not. I do not accept that this would have been Lord Woolf’s intention when he referred en passant in Daniels v Walker to “a substantial case such as this”. In any event, whether or not litigation is substantial cannot be solely determined by reference to the amount claimed. Many libel cases, for example, are undoubtedly substantial even though damages are now relatively modest. The issues raised in litigation may be important to the parties, or to the public generally, for a variety of reasons other than purely financial considerations.

Certainly, I am unable to derive, from Daniels or any of the other cases cited, anything approaching a general principle to the effect that, in claims of less than a certain monetary value, the court should decline to allow a litigant to engage his own expert evidence where he has lost confidence in a single joint expert – especially where the expert evidence is of a technical nature which is likely to be determinative of the case on liability. Yet the Judge thought it appropriate to decide specifically whether this was a “substantial” case. Having decided that it was not, he seems to have treated it as a significant factor in refusing the application. No doubt it was relevant, but it should not have assumed such importance. In my judgment, he should have allowed in Dr Stinton’s evidence because it was technical and far from “peripheral”. I believe that this is what the overriding objective required – whether the Judge assessed the value of the claim as “substantial” or not.

I see merit in grounds one, three and four, and will accordingly allow the appeal.