Hajigeorgiou v Vasiliou
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DYSON |
| Judgment Date | 10 March 2005 |
| Neutral Citation | [2005] EWCA Civ 236 |
| Docket Number | Case No: B1/2004/2676 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 March 2005 |
[2005] EWCA Civ 236
Lord Justice Brooke Vice-President of the Court of Appeal (Civil Division)
Lord Justice Dyson and
Lord Justice Gage
Case No: B1/2004/2676
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE COWELL
Royal Courts of Justice
Strand, London, WC2A 2LL
Ivan Clarke (instructed by Messrs C.P Christou) for the Appellant
Vassos Michael Vasiliou appeared in person
this is the judgment of the court.
This is an appeal from the decision of His Honour Judge Cowell who in the course of a case management conference at the Central London County Court gave certain directions in relation to expert evidence which the defendant seeks to challenge. The judge gave permission to appeal because he considered that his decision raises an issue of practice and procedure affecting legal professional privilege which is of some importance.
The claimant started these proceedings on 1 Aug 2002. The details of the claim are immaterial for present purposes. Suffice it to say that the claimant seeks damages for breach of the defendant's covenant of quiet enjoyment in a lease of premises at Green Lanes, Palmers Green, London N13 which were intended to be used as a restaurant. On 7 April 2004, His Honour Judge Levy QC gave judgment in favour of the claimant on issues of liability and ordered an assessment of damages.
A case management conference was fixed for 21 July. In anticipation of the hearing, Mr Christou (the defendant's solicitor) produced a witness statement in which he set out the defendant's proposed directions. At para 22, he identified a number of issues which, he contended, only an expert could address. These included the value of the restaurant and what profit the restaurant would have made if trading had not been restricted as a result of the defendant's breach of covenant. He continued:
"23. I believe it is not in dispute that there is a tremendous lack of documentation on the part of the Claimant regarding the acquisition and refurbishment of the restaurant. In his evidence the Claimant stated that he had paid builders and contractors some £80,000.00 in cash and did not keep receipts and that in previous restaurants he had run again he was in the habit of not keeping receipts or having proper paperwork. The Claimant had no formal business plan and no formal financial arrangements. This makes it essential in my respectful opinion that these issues should be properly addressed by a restaurant valuation specialist who has given expert evidence on profitability cases.
24. The Defendant has identified an expert who is anticipated will be able to deal with the above issues. The expert is Mr Trevor Watson, BSc, MBA, FRICS. A copy of Mr Watson's CV is exhibited hereto as CPC-10. Mr Watson has an impressive career history and the sample expert witness appointments specified in his CV cover, in my view, this precise situation including an expert appointment assessing the turnover of a fast food restaurant without formal accounting information.
25. Mr Watson's initial fee to provide the report will be £4,000 plus VAT. Thereafter fees are based upon an hourly rate of £250 per hour plus VAT. In view of the costs claimed by the Claimant so far, which approach £150,000 this is not viewed as a disproportionate expense. Nor can such a criticism be levied when taking into account the size of the Claimant's claimed losses as voluntarily quantified.
26. If the Claimant instructs an expert then it is likely that he would have to incur similar levels of expert's fees.
27. The Claimant's own position as to expert evidence is not clear. However the Defendant concedes that if the Claimant should wish in turn to rely upon similar expert evidence, then there could be no objection in that respect.
28. It was hoped that Mr Watson's report would be available by the beginning of July. As the Claimants have raised an issue as to whether there should be expert evidence on this point, the matter has been put on hold until the issue of leave is dealt with by this Honourable Court. If leave is granted the expert's report can be ready by the end on July 2004."
Mr Christou exhibited a detailed curriculum vitae of Mr Watson.
The case management conference took place before Judge Levy on 21 July. It was common ground that each party should have permission to rely on an expert in the field of restaurant valuation and profitability, and we were told that there was little, if any, discussion about this before the judge. At the end of the hearing, counsel who appeared on each side prepared a draft order which they were satisfied accurately reflected what the judge had decided and/or the agreed directions which had been approved by the judge. The terms of the draft agreed by counsel were incorporated in the court order and included the following directions:
"3. Both parties do have permission, if so advised, to instruct one expert each in the specialism of restaurant valuation and profitability.
4. The Defendant do serve on the Claimant any expert's report pursuant to the permission granted under paragraph 3 of this order by 4pm on 4 th October 2004.
5. The Claimant do serve on the Defendant any expert's report pursuant to the permission granted under paragraph 3 of this Order by 4pm on 31 st October 2004.
6. The case be listed for a Pre Trial Review before His Honour Judge Levy QC on 19 th November 2004, with a time estimate of half day.
7. The Trial of Assessment of Damages do take place on 13 th December 2004 before His Honour Judge Levy QC with a time estimate of 5 days."
Difficulties were encountered in implementing these directions. They led Mr Fleming (litigation manager for the claimant's solicitors) to prepare a witness statement dated 28 September in which he described the problems. It is only necessary to refer to what he said about the defendant's expert witness. He said that Mr Watson must have been appointed by the defendant as his expert, because some time after 30 July Mr Watson had attended the claimant's premises by appointment and had carried out an inspection. He went on to say that on 20 September, the defendant's solicitors wrote to the claimant's solicitors asking for access to be afforded to the claimant's premises the following day for inspection by "a further expert, Mr Richard Negus, of Fleurets". Correspondence ensued in which the claimant's solicitors asked why another expert had been appointed, but no explanation was forthcoming. Mr Fleming also said that on 27 September he had telephoned Mr Watson and told him that the defendant's solicitors wished to instruct another expert: Mr Watson expressed surprise, saying that he knew of no reason which prevented him from acting, and that indeed he had already prepared his evidence.
This led Mr Fleming to submit at para 44 of his statement that (a) the defendant should not have permission to adduce the evidence of any further expert without an explanation, and (b) since Mr Watson's evidence was not privileged and may assist the court, disclosure of it should be ordered.
Mr Christou responded in a witness statement of 11 October. He said that Mr Watson had been appointed and had inspected the premises. He had prepared what was described as a "draft interim report". Subsequently, it had been decided that the defendant did not wish to rely on Mr Watson as his expert witness, and Mr Negus was instructed to prepare an expert's report. Mr Negus was willing and able to prepare a report within the timescale prescribed by the order of 21 July. Mr Christou said that he was not at liberty to disclose why the decision had been taken to instruct Mr Negus. He said that, since the order had not limited permission to a named expert, the defendant was entitled to change experts without seeking the permission of the court. But if that was wrong, then he asked the court for permission to rely on the report of Mr Negus, and for an order that he be granted reasonable access to the premises so that he could make any necessary amendments to his report in accordance with his duty to the court.
That was how matters stood when the case came before Judge Cowell on 18 October.
The judgment
First, the judge held that the defendant did need permission to rely on the report of Mr Negus. He decided that the order of 21 July gave the defendant permission to rely on the evidence of Mr Watson and no other expert in restaurant valuation and profitability, so that the defendant required the court's permission to rely on another expert in that field. At para 33 of the judgment, he said:
" There is no entitlement to call an expert in our law. There was mention of Mr. Watson in the evidence that led to the order of 21 July 2004. It is true that the order does not name him, but it is not certain that the same order would have been made had not paragraph 24 of the statement of Mr. Christou extolled the virtues of Mr. Watson. What was intended, even if not specified in the order, was that Mr. Watson would, as indeed he did, inspect and report. It must always be borne in mind that County Court orders are often hurriedly done, and often without any drafting or checking by the Judge."
Secondly, having held that permission was required, he decided that he would give the defendant permission to rely on the evidence of Mr Negus, but only on condition that the report of Mr Watson was disclosed to the claimant. In deciding to impose this condition, the judge relied heavily on the unreported decision of this court in Beck v...
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