The High Court has refused to overturn a decision barring a claimant from adding their own more favourable witness shortly before trial.
The noise-induced hearing loss claimant had sought three days before trial in February 2020 to be given permission to rely upon an expert report. They proposed that a joint expert, whose role had been originally agreed by both parties, would remain as a defendant expert after her report had not been sufficient for the claimant to succeed.
Sitting at Walsall County Court, Miss Recorder McNeill QC had refused the application to adjourn the trial and rely on a report from a new expert. In Hinson v Hare Realizations Ltd, Mr Justice Martin Spencer agreed with that decision, saying the recorder’s approach had been ‘impeccable’ and had taken full account of the overriding objective and interests of justice generally.
The court heard that James Hinson had worked in a machine shop for 10 years and claimed to have been exposed to high levels of noise without protection or training.
His claim having been allocated to the fast-track, the claimant selected a single joint expert from a pool, and this expert’s instruction was agreed by the defendant.
After the expert’s report was unsupportive to the claim, the claimant’s solicitor raised questions of her ahead of the trial date late last year, but there was no application to adjourn the trial or for permission to rely upon an alternative expert. When the trial date was vacated to February this year, the claimant’s solicitor subsequently commissioned an expert report from someone else, without informing the defendant. The application was then made for another trial date, permission to rely on the new expert’s evidence, and for the case to be reallocated to the multi-track.
The recorder accepted that the claimant had ‘lost confidence’ in the joint expert for a genuine reason, but there was no lack of cogency or analysis in the expert’s report. While the claimant would be aggrieved not to be allowed another expert, the defendant would also be aggrieved if the trial was vacated again at considerable cost - in a case where the single joint expert had been proposed by the claimant.