GOOD LAW PROJECT LTD, R V SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE [2021] EWHC 2595 (TCC) (30 SEPTEMBER 2021)

SUMMARY

A stark warning to all parties: if you want to rely on expert evidence, the material used to support that expert opinion must be disclosed to your counterparty. The court will have ‘"little sympathy" for any litigant who ignores the rules regarding the conduct of a case – "endless opportunities for compliance" will not be allowed and permission to rely on expert evidence will be lost. 

FACTUAL BACKGROUND

The Claimant, Good Law Project Ltd (GLP), is a not-for-profit organisation campaigning for good governance and transparency of public authorities. GLP is seeking a judicial review over the award of contracts for antibody tests made during the coronavirus pandemic. The main issue in this matter is due to go to trial imminently. This was an interim decision in relation to permission for expert evidence in the case.

The Defendant, the Secretary of State for Health and Social Care (the Department), had instructed an expert economist to provide an opinion to support its defence of the claim brought by GLP. GLP objected to the expert's report, due to several references made to "discussions" within the report, but with no reference to the source of the information or evidence of these discussions that the expert was relying on. The court had previously determined that, without evidence of those discussions being provided to GLP, the expert's report was non-compliant and so needed to be amended. 

DECISION 

Mr Justice Fraser again refused permission for this report to be admitted as evidence in the case. The report that was again put before the court was no better, and perhaps even worse, than the initial report that the Department had sought to rely on. The Department / expert had done nothing more than "deleted any reference to those discussions having taken place at all." Instead, the amended report suggested that the source of the information, which led to exactly the same conclusions as the previous report, was something else entirely. Fraser J concluded that this approach was "simply not acceptable". The Department and its expert could not seek to rely on apparent evidence that GLP and its expert had not had access to and/or been able to address. 

It is important that experts for both parties in a case have access to the same material, and that the material on which an expert's conclusions are based should be available to the court and to the opposing expert. 

Mr Justice Fraser made clear that the court had "little sympathy" with any litigant who simply ignored the rules, as the Department had done, and that he would not allow "endless opportunities for compliance" with the rules, as to do so was "not in accordance with the overriding objective". There was no excuse for litigants to fail to comply with the rules generally, nor for experts to fail to comply with the requirements upon them. He made clear that "these requirements are not optional extras, only to be complied with by a litigant and their expert if the court states in a specific case that they are to apply. They apply in all cases." Finally, Fraser J commented that the fact that the Department wasn't forthcoming with the source of information also went against the duty of candour in judicial review proceedings. 

COMMENTARY

The decision highlights the importance of transparency in court proceedings, particularly in relation to expert evidence. It is a key reminder that, where a party is seeking to rely on certain information, it is important that such evidence is provided to the court and disclosed to the other party, so that they may have an equal opportunity of considering and addressing it. Any attempt to withhold such information will be looked at unfavourably by the court and may result in a party not being able to rely on the expert evidence that it has spent considerable resource acquiring.