Queen’s Bench Prevents Defendant Ambush of Expert Witness

In a personal injury claim by an injured professional musician Master Davison has made permission to ask questions under Part 35.6 conditional on disclosing an undisclosed draft expert’s report.

The defendants had pressed for an order for expert evidence to deal with the claimant’s employment prospects as a classical musician and an order was made for mutual exchange of reports. When the time came for exchange, however, the claimant served her report but the defendants asked for additional time for service and then said that they did not intend to serve their report.

The defendants did not serve any questions on the claimant’s expert within the 28 days allowed by CPR Part 35.6 (2) and six months passed before they took any further action. Then, a month before trial, the defendants applied for an order that the claimant’s expert attend trial for cross-examination on matters that, it was said, would go beyond clarification of the expert’s report under CPR Part 35.6 (2) (c). The defendants were essentially ‘expert shopping’, hoping that they would do better in cross-examination ambushing the claimant’s expert than they had been able to do with their own expert, and avoiding offering their own expert to be cross-examined. The Master refused the application but gave the defendants permission to serve Part 35 questions out of time on condition that they serve the draft expert’s report that they had obtained but not served. The defendants decided not to serve their report or ask any questions and the case has now settled before trial.

Grahame Aldous QC and Nick Hillier acted for the claimant.