London Executive Aviation Ltd v Royal Bank of Scotland Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Newey |
| Judgment Date | 28 February 2017 |
| Neutral Citation | [2017] EWHC 1037 (Ch) |
| Court | Chancery Division |
| Date | 28 February 2017 |
| Docket Number | Case No: HC-2014-002117 |
[2017] EWHC 1037 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr Justice Newey
Case No: HC-2014-002117
Paul Marshall (instructed by FPG Solicitors) appeared on behalf of the Claimant
Paul Sinclair QC and Laurie Brock (instructed by Dentons) appeared on behalf of the Defendant
I have before me an application by the claimant, London Executive Aviation Limited (or "LEA"), for permission to call expert evidence.
. The question of whether it is appropriate to have expert evidence has been live in these proceedings for quite some time. The particular evidence that it is proposed I should give permission for is now helpfully identified in a schedule to the skeleton argument of Mr Paul Marshall, who appears for LEA. In broad terms, the matters listed are concerned with suitability requirements, the risks associated with the products sold to LEA and whether those products were suitable and/or potentially appropriate to it.
LEA's application is opposed by Mr Paul Sinclair, who appears with Mr Laurie Brock for the defendant, the Royal Bank of Scotland. According to Mr Sinclair, there is no warrant for allowing expert evidence in the circumstances of the present case.
In terms of authority, two very well-known cases bearing on the point I have to determine are the decision of Oliver J in Midland Bank Trust Co Ltd v Hett, Stumps & Kemp [1979] Ch 384 and that of Evans-Lombe J in Barings plc v Coopers & Lybrand (No 2) [2001] Lloyd's Rep Bank 85. In the former case, which concerned a claim for solicitors' negligence, Oliver J explained that he had heard evidence from a number of practising solicitors and said that he doubted the value or even the admissibility of that sort of evidence. He went on:
"The extent of the legal duty in any given situation must, I think, be a question of law for the court. Clearly, if there is some practice in a particular profession, some accepted standard of conduct which is laid down by a professional institute or sanctioned by common usage, evidence of that can and ought to be received. But evidence which really amounts to no more than an expression of opinion by a particular practitioner of what he thinks that he would have done had he been placed, hypothetically and without the benefit of hindsight, in the position of the defendants, is of little assistance to the court; whilst evidence of the witnesses' view of what, as a matter of law, the solicitor's duty was in the particular circumstances of the case is, I should have thought, inadmissible, for that is the very question which it is the court's function to decide."
So far as the Barings case is concerned, Evans-Lombe J there said this about expert evidence in paragraph 45 of his judgment:
"In my judgment the authorities which I have cited above establish the following propositions: expert evidence is admissible under section 3 of the Civil Evidence Act 1972 in any case where the Court accepts that there exists a recognised expertise governed by recognised standards and rules of conduct capable of influencing the Court's decision on any of the issues which it has to decide and the witness to be called satisfies the Court that he has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of those issues. Evidence meeting this test can still be excluded by the Court if the Court takes the view that calling it will not be helpful to the Court in resolving any issue in the case justly. Such evidence will not be helpful where the issue to be decided is one of law or is otherwise one on which the Court is able to come to a fully informed decision without hearing such evidence."
With regard to whether it is appropriate to have expert evidence in swaps cases, I was taken to two decision of Judge Havelock-Allan QC, sitting as a High Court Judge in the Mercantile Court: Battrick v Royal Bank of Scotland [2013] EWHC 4848 (QB) and St Dominic's Ltd v Royal Bank of Scotland [2015] EWHC 3822 (QB). Both cases involved allegations of mis-selling, and in each Judge Havelock-Allan decided that it was appropriate to give permission for expert evidence. Judge Havelock-Allan noted in his judgments that there appeared to have been a division of opinion and practice amongst judges as to the desirability and appropriateness of expert evidence in mis-selling cases. He explained that he had himself case-managed 47 swaps mis-selling cases and had tended to give permission for expert evidence. In contrast, certain other judges had, Judge Havelock-Allan explained, declined to grant such...
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Dudding and Another v Royal Bank of Scotland Plc
...a decision of HHJ Havelock-Allan QC sitting as a High Court judge. I was also taken to the decision of Newey J in London Executive Aviation Ltd v Royal Bank of Scotland Plc [2017] EWHC 1037 (Ch); and also to Darby Properties Ltd & Ors v Lloyds Bank Plc [2016] EWHC 249 (Ch); and to the RBS R......