Queen’s Bench Prevents Defendant Ambush of Expert Witness

News

31/05/2016

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.

Featured Counsel

Grahame Aldous KC

Call 1979 | Silk 2008

Latest News & Events

The Dekagram: 10th November 2025

This week’s Dekagram covers the court system from top to bottom, domestically and internationally. Sarah Prager KC examines two recent decisions of the Court of Justice of the European Union relating to air travel, a decision considering the enforcement jurisdiction of the County Court, and…

The Dekagram: 3rd November 2025

In this week’s dekagram Dominique Smith examines the all-important topic of Part 36 offers, and the knotty question of whether and how they can be withdrawn, whilst Russell Wilcox considers what currency costs orders should be made in. When can a Part 36 Offer be…

The Dekagram: 27th October 2025

In this week’s Dekagram Kerry Nicholson considers whether there’s any way around a failure to serve an N510 form on time when issuing a claim, and Robbie Parkin examines a quite extraordinary case which looks set to rumble on through the courts for years to…

© Deka Chambers 2025

Search

Portfolio Builder

Select the expertise that you would like to download or add to the portfolio

Download    Add to portfolio   
Portfolio
Title Type CV Email

Remove All

Download


Click here to share this shortlist.
(It will expire after 30 days.)