LAW REPORT
No exception to general rule on admissibility of expert evidence in Covid-19 challenge
Monday October 11 2021, 12.01am, The Times
Technology and Construction Court
Published October 11, 2021
Regina (The Good Law Project Ltd) v Secretary of State for Health and Social Care
Before Mr Justice Fraser
[2021] EWHC 2595 (TCC)
Judgment September 30, 2021
The rules concerning the filing of expert evidence in civil litigation applied in precisely the same way
to judicial review proceedings and there was no special dispensation because the claim involved an
issue of public law.
Mr Justice Fraser, sitting in the Technology and Construction Court, so held in, inter alia, refusing an
application by the Secretary of State for Health and Social Care to adduce expert evidence in judicial
review proceedings brought against him by the claimant, the Good Law Project Ltd, a not-for-profit
campaign organisation, challenging the award of contracts for the manufacture and supply of rapid
Covid-19 antibody tests to the interested party, Abingdon Health Plc, a private company, as being
unlawful state aid.
Joseph Barrett, Rupert Paines and Stephanie David for the claimant; Philip Moser QC, Ewan West
and Niamh Cleary for the defendant; Ligia Osepciu and Cliodhna Kelleher for the interested party.
Mr Justice Fraser said that the expert report concerned, and one submitted previously and rejected,
failed to comply with the Civil Procedure Rules and failed to comply with the principles that
underpinned the deployment of expert evidence in court proceedings, both judicial review as well as
other areas of law. Those principles were well known, and they were grounded in fairness and
equality of arms.
Experts owed an overriding duty to the court, above any duty that they owed to the parties
instructing them. The basic and underlying theme to the use of experts was one of independence
and fairness.
An important component of that duty was that experts for both parties had to have access to the
same material. Expert evidence could not fairly be considered by the court if one expert had an
unfair advantage, or access to material to which an opposite number had no comparable access.
Equally, in order properly to consider expert evidence, the court ought to be able to consider the
material upon which the expert’s conclusions were based, and an opposing expert was entitled to
consider that same material.
Those requirements, which were mandatory, were expressly set out in Part 35 of the Civil Procedure
Rules, the Practice Direction to that Part, and the Guidance for the Instruction of Experts in Civil
Claims 2014.
The requirement had been wholly ignored in the first report. The expert referred extensively in that
version of the report simply to “discussions” she had had with the interested party (and also
unnamed personnel in the secretary of state’s department). No details at all were provided of that
material, the personnel from whom it came, or even a summary of what it was. Those were obvious
deficiencies.
The details could, however, have been provided in the second report. They plainly ought to have
been. Not only was that not done (even in summary form) but the requirement to identify such
material had been entirely circumvented and avoided.
The second report included exactly the same conclusions as those reached in the first report from
the discussions referred to, but the second time the report deleted any reference to those
discussions having taken place at all.
It stated that the source of the information leading to the same conclusions was something else
entirely. In other words, reading the second report alone, one would never know that those earlier
discussions had taken place, how many there were, when they had taken place and with whom, let
alone what they constituted or what material was provided to the expert.
The secretary of state would not be provided with another opportunity to try to remedy those
deficiencies or breaches, for the following reasons:
First, the point had already clearly been brought to the attention of the secretary of state in relation
to the first of the reports.
Second, no reason had been provided for the failure of the second report to remedy those
deficiencies.
Third, the substantive hearing of the matter was imminent. Were permission to be given for a third
iteration of the report to be submitted, the claimant would be entitled to have time to consider it,
and to instruct and adduce its own expert evidence. There was simply insufficient time available for
those different steps.
Fourth, the court had little sympathy with any litigant who simply ignored the rules as the secretary
of state had done. The requirements were not optional extras, only to be complied with by a litigant
and their expert if the court stated in a specific case that they were to apply. They applied in all
cases.
Fifth, the secretary of state was represented by professional legal advisers and the Government
Legal Department, and there was no good reason to grant such a litigant a third opportunity to
comply with the rules.
There was no excuse for litigants to fail to comply with the rules, nor for failures by experts to
comply with the requirements of Part 35 of the Civil Procedure Rules specifically.
Additionally, parties in judicial review proceedings were not entitled to some wider indulgence in
that respect, nor were the rules to be applied less strictly simply because a case concerned public
law. In the present case, the failures in respect of expert evidence were neither isolated nor
unimportant, nor was the court seeking to impose a counsel of perfection upon the secretary of
state’s expert.
The decision on the application was not fatal to the secretary of state’s overall defence on the state
aid ground, but, in any event, any blame for any consequences of the inability to rely on the
evidence could only be laid at the door of the secretary of state.
Solicitors: Rook Irwin Sweeney LLP; Treasury Solicitor; Bristows LLP.