APPLICATION TO ADDUCE “EXPERT EVIDENCE” FROM THE CLAIMANT’S SON WAS REFUSED: THIS IS NOT AN EXPERT REPORT, IT IS NOT COMPLIANT, NOT IMPARTIAL AND NOT ADMISSIBLE…

We are returning to the judgment of Jason Beer KC Rajan Marwaha v Director of Border Revenue & Anor [2025] EWHC 869 (KB) Jason Beer KC and staying with the issue of “expert” evidence. This time looking at the attempt of a lay witness to give expert evidence.

KEY PRACTICE POINT

Attempts to put expert evidence in the statements of lay witnesses are surprisingly common.  (Lawyers can be some of the worst offenders…). Practitioners have to understand the major difference between evidence of fact and evidence of opinion.  A failure to recognise this difference can often be expensive.

THE CASE

The claimant imported poppies.  The defendants seized, forfeited and destroyed three consignments of poppies believing them to be illegal drugs.  However these were dried poppy heads used for ornamental purposes and were not liable to forfeiture. The claimant sought damages from the defendants.  The defendant had already paid £174,072 – being the market value of the goods at the time of their seizure.  However the claimant sought damages of £14 million – claiming that this was the true value of the loss to the business.  Both parties instructed experts who produced a joint report. The court refused permission to call the experts at trial.

FURTHER EVIDENCE ON THE MORNING OF THE TRIAL

On the morning of the trial the judge was handed a statement from the claimant’s son which contained “evidence” as to the claimant’s losses.

THE JUDGMENT ON THE ADMISSIBILITY OF THE LATE EVIDENCE

The judge held that the statement was not to be admitted at trial, for a number of reasons.

“Ruling on application to adduce expert evidence from the Claimant’s son

8. Additionally, as I walked into Court, I was presented with an application to adduce evidence from the Claimant’s son in the form of some pieces of paper comprising a document entitled “Financial Report Business Losses and Revised Compensation Claim.” In summary, this sought to advance entirely new evidence as to the calculation of the Claimant’s alleged losses, resulting in different figures from those pleaded in the Schedule of Loss and in the Claimant’s expert accountant’s report (and, notably, arrived at by different methods and using different underlying data than had been used to calculate the Schedule of Loss and in the provision of figures by the Claimant’s (and the Defendants’) expert witnesses).

9. I dismiss the application for the following reasons.

10. First, this is in substance opinion evidence, but it is not given by a person who is an expert witness. The document in which the evidence is contained is headed a “Financial Report Business Losses and Revised Compensation Claim” and purports to give evidence as to the appropriate approach to the calculation of the Claimant’s losses. The Claimant’s son does not possess any expertise in these matters sufficient to qualify him to give opinion evidence about them. This first reason is determinative of the application: quite simply, the evidence is not admissible.

11. Second, the document sought to be relied on as constituting the expert evidence is not compliant with Part 35 of the Civil Procedure Rules (or the Practice Direction thereunder) in any respect. In particular: (i) It is not signed; (ii) it does not contain a Statement of Truth appropriate for an expert witness; (iii) it does not contain an expert witness declaration; (iv) it does not state the substance of all material instructions, whether written or oral, on the basis of which the document was written; and (v) it is not addressed to the Court.

12.Third, the proposed “expert witness” is not independent in any sense. The author of the document is the Claimant’s son and a co-director of a company with the Claimant – it is noticeable that the documents refers in places to “our claim”.

13.Fourth, the document strays outside the permissible issue which would be properly addressed in an expert accountancy report – in places it makes submissions of law. Not only is this impermissible, but it is also yet another indication that the author of the document did not know or understand the appropriate boundaries of an expert report or the duties of an expert witness.

14. Fifth, there is already extensive expert evidence before the Court in the form of the reports of Mr Sture and Mr Stears and in their joint statement. By Part 35.1 of the Civil Procedure Rules “Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.” This opinion evidence is not in my opinion reasonably required to resolve the proceedings.

15. Sixth, the application is made very late – as I say, it was say handed to me as I entered Court, having apparently been filed by CE File yesterday, Sunday 9th February 2025 – and no proper explanation has been given for the late service. The relevant procedural background to this sixth point is that on 22nd June 2022 Master McCloud made an Order at the Case Management Conference giving the parties permissions each to rely on the written evidence of an expert accountant, with a timetable for service of the Claimant’s report by 8th September 2022 and the Defendant’s report by 3rd October 2022. The Claimant did not meet this deadline, and applied for an extension of time. On 14th March 2023 Mr Justice Lane made an Unless Order extending time until 28th April 2023 – if the Claimant did not comply with that deadline, he was debarred from replying on expert evidence. The Claimant met that deadline, but then nearly two years later sought to rely on additional expert evidence (namely a further a further report from Mr Sears). That application came before HHJ Tindal (sitting as a Judge of the High Court) on 27th January 2025 – i.e. about a fortnight before the commencement of this trial – and he dismissed it. Against this background, even if I had determined that the evidence in the document was admissible as expert evidence, that the document was in proper form, and that such evidence was reasonably required in the proceedings, I should have declined to accede to the application.

16. For all of these reasons, the application is dismissed.”