Bulic v Harwoods & Ors

Factual and Procedural Background

The Appellant claimed damages in the County Court concerning a serious mechanical failure of the engine of his Jaguar vehicle around 23 April 2009. The primary issue was the cause of the engine failure, with the Appellant alleging inadequate servicing by the First Defendant's garage and a design fault in the diesel particulate filter (DPF) leading to engine oil dilution. The Defendants contended that the failure was likely caused by an unidentified third party over-filling the engine oil. The case hinged on technical expert evidence.

The appeal concerned a case management decision by His Honour Judge [Simpkiss] dated 13 June 2012, regarding whether the Appellant could adduce his own expert evidence instead of relying solely on a previously agreed single joint expert. The trial was initially scheduled for 18 June 2012 but was adjourned following an application for interim relief after the appeal was lodged.

Legal Issues Presented

1. Whether the Judge erred in law by applying an inappropriate standard to the test for disinstructing a joint expert as established in Daniels v Walker.
2. Whether the Judge erred by applying a test of actual bias rather than apparent or perceived bias in rejecting the claim of bias against the joint expert.
3. Whether the Judge erred in the exercise of discretion by dismissing the Appellant's concerns about the technical adequacy and expertise of the joint expert.
4. Whether the Judge erred in assessing the litigation as not sufficiently "substantial" to justify dispensing with a single joint expert.

Arguments of the Parties

Appellant's Arguments

• The joint expert lacked the requisite expertise and provided an inadequate analysis of the engine failure.
• There was apparent bias on the part of the joint expert due to his acceptance of instructions from Jaguar Land Rover after his appointment.
• The case was sufficiently substantial and technical to justify adducing separate expert evidence rather than relying on a single joint expert.
• The Judge applied too restrictive a test ("exceptionality") instead of the broader "not fanciful" test from Daniels v Walker.

Defendants' Arguments

• The engine failure was more likely caused by over-filling of engine oil by a third party rather than servicing issues or design faults.
• The case was not sufficiently substantial to warrant disinstructing the single joint expert.
• The joint expert was not biased; accepting instructions from multiple parties does not create a reasonable apprehension of bias.
• The Judge correctly applied the relevant legal tests and exercised his discretion appropriately.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by reviewing the relevant legal principles governing the use of single joint experts, primarily derived from Daniels v Walker and related authorities. It noted that the Judge had relied heavily on a test of "exceptionality" drawn from Kay, which the Court found to be a narrower gloss not entirely consistent with the broader and more flexible approach intended by Lord Woolf in Daniels.

The Court emphasized the importance of the overriding objective of the Civil Procedure Rules, which requires courts to do justice between parties. It highlighted that the issue in this case was technical and central to the dispute, distinguishing it from cases involving peripheral or non-technical issues where a single joint expert might suffice.

Regarding the alleged bias of the joint expert, the Court found no reasonable apprehension of bias arising merely from the expert's instructions from multiple parties, including Jaguar Land Rover. The expert's failure to notify parties of subsequent instructions was deemed insignificant in context.

The Court recognized the Appellant's genuine grievances concerning the joint expert's technical competence as expressed in the alternative expert's report. It considered that these concerns merited full exploration at trial through cross-examination and comparison of expert evidence, which was not possible if the Appellant was confined to the joint expert's report alone.

Finally, the Court rejected the Judge's emphasis on the monetary value of the claim as a determinant of whether the case was "substantial," noting that importance and technicality may justify separate expert evidence regardless of claim size.

Holding and Implications

The Court ALLOWED THE APPEAL, overturning the Judge's decision to refuse the Appellant permission to adduce his own expert evidence. The Court held that the Judge had applied an unduly restrictive test, failing to properly consider the technical and central nature of the dispute and the Appellant's legitimate concerns about the joint expert's expertise.

The direct effect is that the Appellant may present his own expert evidence at trial alongside the existing joint expert. No broader precedent was established beyond clarifying the appropriate discretionary approach to the use of single joint experts in technical and substantial cases.