Royal Mail plc v Office of Communications

Factual and Procedural Background

The appeal concerns a hearing before the Competition Appeal Tribunal involving Company A as Appellant, the Regulator as Respondent, and Company B as Intervener. The hearing was scheduled to run from 10 June to 12 July 2019, with an extension of three additional days to accommodate the oral evidence of an expert witness for the Appellant, Mr Expert 1. During the hearing, Mr Expert 1 became ill before giving oral evidence, and despite efforts to rearrange the timetable, it was not possible to fit his evidence within the allotted time.

The Respondent and Intervener indicated willingness to forgo cross-examining Mr Expert 1 and proposed relying on his written evidence during closing submissions. The Appellant opposed proceeding without the opportunity to cross-examine Mr Expert 1, citing fairness concerns. The Appellant applied for an adjournment until Mr Expert 1 could give oral evidence after the summer vacation. The Respondent and Intervener opposed the adjournment. The Tribunal convened a Case Management Conference on 8 July 2019 and refused the adjournment application.

Legal Issues Presented

1. Whether the hearing should be adjourned to allow the Appellant's expert witness, who was ill and unable to give oral evidence, to recover and give evidence at a later date.
2. Whether proceeding without the opportunity to cross-examine the Appellant's expert witness on his written evidence would be fair to the Appellant and the other parties.
3. The extent to which the Tribunal's procedural rules permit dispensing with oral evidence and cross-examination in such circumstances while ensuring fairness.

Arguments of the Parties

Appellant's Arguments

• The refusal to allow cross-examination of their expert witness, Mr Expert 1, would be fundamentally unfair and contrary to the principle that a party cannot contest expert evidence without putting adverse points to the expert in person (the "rule" from Browne v Dunn).
• Mr Expert 1’s evidence was central to the Appellant’s case, covering key economic and financial issues, including the assessment of materiality and the impact of certain contractual notices.
• The Appellant proposed an adjournment until after the summer vacation to allow Mr Expert 1 to recover and give oral evidence, estimating a relatively short delay.
• Proceeding without cross-examination would deny the Appellant the opportunity to respond to criticisms of their expert’s evidence, placing them at an unfair disadvantage.

Respondent's Arguments

• The hearing should proceed relying on Mr Expert 1’s extensive written reports, which included responses to criticisms from other experts and a detailed Joint Expert Statement outlining agreements and disagreements.
• The Tribunal’s rules allow dispensing with oral evidence and cross-examination if fairness is maintained.
• An adjournment would cause significant delay, cost, and risk to the integrity of the trial process, with no reliable indication of when the expert would be fit to give evidence.
• Expert evidence involves opinions open to disagreement without imputations of dishonesty, so cross-examination is less critical than with factual witnesses.
• The Respondent reserved the right to contest the expert’s written evidence through submissions but would not seek to ambush the Appellant with new points.

Intervener's Arguments

• Supported the Respondent’s position opposing adjournment and relying on the written expert evidence.
• Argued the Appellant overstated the unfairness rule, which is primarily aimed at preventing ambush, not applicable in this case.
• Pointed to the lack of specificity in the adjournment request and practical difficulties in resuming the hearing before late autumn or early next year.
• Maintained that the Tribunal could fully assess the expert evidence without oral testimony, given the extensive written reports and joint expert statement.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Browne v Dunn (1893) 6 R 67 HL	Requirement that a party intending to impeach a witness must give the witness an opportunity to explain during cross-examination to ensure fairness.	The Tribunal considered the rule important but not absolute, especially regarding expert opinions; it balanced this against overall fairness in the context of the expert's unavailability.
Chen v Ng (British Virgin Islands) [2017] UKPC 27	Clarification that the Browne v Dunn rule is not inflexible and must be applied in context to ensure fairness.	The Tribunal cited this case to support a flexible approach to the rule, considering the imperfect realities of trials and the nature of expert evidence.
Markem Corpn v Zipher Ltd [2005] RPC 31	Application of Browne v Dunn rule in patent litigation regarding the need to challenge witness evidence during cross-examination.	The Tribunal referenced this precedent to illustrate the importance of fair opportunity to challenge evidence but distinguished the expert opinion context.
Williams v Solicitors Regulation Authority [2017] EWHC 1478 (Admin)	The rule is a matter of fact and degree, with modern civil procedure allowing written statements verified on oath.	The Tribunal relied on this to highlight that written expert evidence verified under oath can mitigate the absence of oral cross-examination.
Sait v The General Medical Council [2018] EWHC 3160 (Admin)	The Browne v Dunn rule is considered obsolete in light of modern civil procedure advances.	The Tribunal noted the evolving nature of the rule and emphasized a balanced fairness approach rather than strict adherence.
UK Trucks Claim Limited v Fiat Chrysler and others [2019] CAT 15	Guidance on adjournments balancing interests of justice, efficiency, and other litigants.	The Tribunal applied the principle of proportionality and fairness in refusing the adjournment, considering the wider impact on the trial process.
AB Sudan v Secretary of State for the Home Department [2013] EWCA Civ 921	Importance of balancing sensible and proportionate case management with interests of justice.	Referenced to emphasize the Tribunal’s discretion in managing proceedings fairly and efficiently.
Albon v Naza Motor Trading [2007] EWHC 2613 (Ch)	Refusal of adjournment due to witness unavailability.	Used as part of the jurisprudence supporting the Tribunal’s decision to refuse adjournment absent compelling evidence.
Matthews v Tarmac Bricks and Tiles [1999] CPLR 463	Adjournments and their refusal on grounds of witness unavailability.	Supported the principle that adjournment decisions must be fact-specific and balanced.
Robshaw v United Lincolnshire Hospital [2015] EWHC 247	Guidance on adjournments and medical unfitness of witnesses.	Reinforced the need for rigorous evidence of unfitness before granting adjournments.
Duffy v Secretary of State for Health [2015] EWHC 867	Similar guidance on adjournments and witness unavailability.	Supported the Tribunal’s approach requiring substantive medical evidence to justify adjournment.
General Medical Council v Hyatt [2018] EWCA Civ 2796	Requirement for rigorous scrutiny of medical evidence supporting adjournment applications.	The Tribunal adopted this rigorous standard and noted absence of such evidence in the present case.
Mohun Smith v TBO Investments [2016] EWCA Civ 403	Emphasizes rigorous approach to medical evidence for adjournments.	Reinforced the Tribunal’s view on the need for substantive medical evidence before delaying proceedings.

Court's Reasoning and Analysis

The Tribunal recognised the difficulty caused by the unavailability of the Appellant's expert witness to give oral evidence and the resulting inability to cross-examine him. It acknowledged the fundamental fairness principle requiring a witness to have an opportunity to respond to adverse points, as established in Browne v Dunn, but emphasised that this principle is not absolute and must be balanced against practical realities and overall fairness.

The Tribunal noted that the expert evidence was primarily opinion-based, where disagreements concern technical correctness rather than truthfulness, reducing the criticality of cross-examination. The extensive written reports and a detailed Joint Expert Statement had already explored points of agreement and disagreement, providing the Tribunal with a comprehensive understanding of the issues.

The Respondent and Intervener voluntarily waived cross-examination rights, which shifted the disadvantage primarily to the Appellant. However, the Tribunal found that the Appellant’s claim of unfairness was overstated given the comprehensive written evidence and the assurances that no new or ambush points would arise in closing submissions.

The Tribunal also considered the practicalities and consequences of adjournment, noting the absence of medical evidence supporting the expert’s anticipated recovery time and the significant delay and disruption an adjournment would cause. The earliest practical resumption would be months away, threatening the coherence, efficiency, and fairness of the trial process overall.

Balancing these factors, the Tribunal concluded that the risk to the overall fairness and integrity of the trial process from a lengthy adjournment outweighed the limited unfairness claimed by the Appellant from the expert’s absence. The Tribunal emphasised its duty to actively manage cases justly and proportionately, including ensuring hearings are conducted within defined time limits.

Holding and Implications

The Tribunal REJECTED the Appellant’s application for an adjournment and ordered that the hearing proceed to closing submissions as scheduled.

This decision directly affects the parties by requiring the case to conclude without oral cross-examination of the Appellant’s expert witness. The Tribunal found no significant unfairness in this approach given the particular circumstances and extensive written evidence. No new legal precedent was established; rather, the ruling applied established principles of fairness, case management, and the flexible application of the Browne v Dunn rule in the context of expert evidence and procedural fairness.