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Chancery Division has allowed British Airways' (BA) appeal [British Airways plc v Spencer and others (trustees of the Airways pensions scheme)  EWHC 2477 (Ch),  All ER (D) 101 (Aug)] against a deputy master's case management decision
refusing BA permission to call or rely on expert evidence. In doing so, it carefully considered the meaning and purpose of rule 35.1 of the CPR. It also set out the test to be applied by a court in deciding whether a party should be allowed to adduce
expert evidence by reference to that evidence being reasonably required or of assistance to the court in resolving a particular issue in the case or the proceedings as a whole. This judgment also looked at rule 3.1(2)(k) and the extent to which case
management decisions bind the trial judge.
'an objection in principle...because the advice was directed to the Trustees who are not actuarial experts. I would hope and expect that the court would be able to understand--especially with the assistance of counsel--the advice which was given just
as much as the Trustees' (para )
This claim about BA's pensions schemes was complex and involved a large number of pleaded issues as well as there being a large amount of money at stake for the claimants.
The deputy master, having found no expert evidence was necessary, refused the claimant permission to adduce expert evidence. The claimant, BA, successfully appealed that case management decision.
In allowing the appeal, the Chancery Division considered the underlying policy objective of CPR 31.5 (namely restricting expert evidence to 'that which is reasonably required to resolve the proceedings') as being to 'reduce the incidence of inappropriate
use of experts to bolster cases' and referred to what Aikens J said in JP Morgan Chase v Springwell  EWHC 2755 (Comm),  All ER (D) 44 (Nov) in this regard.
In determining the extent to which BA would be entitled to adduce expert evidence, the Chancery Division considered each of the pleaded issues, applying the test set out below.
Note: this case was unusual in that the claimant would always be liable for both sides' costs of adducing expert evidence (see para ). As such, the Chancery Division considered 'recognition of the ultimate costs burden ought to have been a weighty
factor in the exercise of the [deputy master's] discretion' (para ). It would have been interesting to see how the court would have balanced the factors above with its duty to further the overriding objective had the unusual costs circumstances
In granting the appeal, the Chancery Division found, among other things:
'needs to be made in every case and, in making that judgment, it is relevant to consider whether, on the one hand, the evidence is necessary (in the sense that a decision cannot be made without it) or whether it is of very marginal relevance with the
court being well able to decide the issues without it, in which case a balance has to be struck and the proportionality of its admission assessed. In striking that balance, the court should, in my judgment, be prepared to take into account disparate
factors including the value of the claim, the effect of a judgment either way on the parties, who is to pay for the commissioning of the evidence on each side and the delay, if any, which the production of such evidence would entail (particularly
delay which might result in the vacating of a trial date)' (para )
'it cannot be said...it will not be necessary to decide any particular pleaded issue in order to resolve the proceedings. It must follow that, if expert evidence is reasonably required to resolve a pleaded issue, it will also be reasonably required to
resolve the proceedings. However, unless the evidence is necessary in order to resolve an issue, whether it should be admitted needs to be assessed in the context of the resolution of the proceedings as a whole. There would be nothing inconsistent
in accepting that particular evidence ought to be admitted in resolving an issue within the proceedings if that issue stood alone but deciding, in the context of the proceedings as a whole, that such evidence was not reasonably required in resolving
the proceedings (unless that evidence was necessary to resolve the issue).
Thus in Mitchell, the expert evidence was not necessary but it was, or might have turned out to be, helpful. Because the issue to which it went was central to the case and because the evidence might be conclusive, it was admitted. But if in another
case a similar issue were to arise which, instead of being central, was merely peripheral, the court might take the view that the expert evidence was not reasonably required to resolve the proceedings. The balance could come down in favour of refusing
to admit that evidence.'
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Virginia specialises in general domestic and international commercial litigation, arbitration and alternative dispute resolution.
Virginia trained, qualified and practiced with Pinsent Masons before moving to Marriott Harrison where she continued in practice for a further seven years.
In practice, Virginia acted in a variety of general commercial disputes covering areas including intellectual property, fraud, defamation, misrepresentation, breach of contract, debt recovery, breach of restrictive covenants and company and shareholders’ disputes.
Virginia is Head of Dispute Resolution at Lexis®PSL and, when not focused on the strategic development and operational requirements of the Dispute Resolution module, her content work focuses on case management and evidence in civil litigation. She also regularly contributes to the LexisNexis Dispute Resolution Blog.
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