The claimant brought a claim before the English court for recognition and enforcement of an arbitration award in its favour, a claim which the defendant resisted. Pursuant to CPR Pt 35, both parties instructed experts to opine on relevant issues of foreign law, and the experts also prepared a joint expert report. The defendant contended that certain paragraphs of the claimant’s expert’s report and of the joint expert report were inadmissible because they dealt with questions of construction or the application of the law to the facts and because they cut across legal arguments that the defendant planned to make at a forthcoming preliminary issues hearing. It applied for an order to declare those paragraphs inadmissible and have them excised from the reports.
On the defendant’s application—
Held, application refused. Except in very clear cases, it was unnecessary and disproportionate to exclude or excise opinions where an expert report, whether or not produced pursuant to CPR Pt 35, opined on inadmissible matters. The proper course was instead for the whole document to be before the court and for the trial judge to take account of the report only to the extent that it reflected expertise and to disregard it in so far as it did not. Given that the defendant had not established any real prejudice to it which would result from the reports going in their entirety to the judge at the preliminary issues hearing, the defendant’s expert had had the opportunity in the joint report to state his position in response to the opinions expressed by the claimant’s expert, and the passages that allegedly cut across legal arguments that the defendant planned to make at that hearing did not prevent the defendant from advancing those submissions, the appropriate course was to allow the reports to stand in their entirety and be considered by the court at the hearing (paras 19–21, 23–27, 28–30, 32–34, 35).
Nicholas Tse and Ravinder Thukral (of Brown Rudnick llp) for the claimant.
Ricky Diwan QC (instructed by Reynolds Porter Chamberlain) for the defendant.