Mayr & Ors v CMS Cameron McKenna Nabarro Olswang LLP [2018] EWHC 3669 (Comm) (High Court, Males J, 14 December 2018)
The High Court, in a pre-trial review hearing, determined that the claimant could not adduce expert evidence, where the expert was not expected to provide the report by the required deadline and the hearing of the case was imminent, unless he did provide the report in time
Pre-trial review – evidence of experts – unsatisfacory state – claim for several hundren million Euro – two areas of expert evidence – “LMM issue” – “Turkish issue” – directions given to exchange reports then have joint meeting of experts – supplemental reports – purpose of supplemental reports – failure of one expert to provide a supplemental report – expectation of supplemental report by 21 December – not to be available until 7 January – trial expected to start on 16 January with opening written submissions – failure of claimants to explain why expert had failed to provide report on workable soliution – remedy – whether the order had been sought by the defendants – whether the fault was of the complainants or their expert witness – effect of striking out a significant portion of claim – updated order following submissions and concession by defendants – requirement that expert provide report by 21 December
“What happened is that in relation to both aspects of the expert evidence, the LMM issue and the Turkish issue, conventional directions were given. These provided, in accordance with the usual practice of this court, for a sequence of steps. First there was to be an exchange of the experts’ initial reports. This would be followed by a joint meeting of the experts in each discipline. Nobody involved in litigation in this court, whether as client, lawyer or expert, can be in any doubt that the court expects and requires the experts at the joint meeting to take a constructive approach, discussing the contents of their report and the issues on which they are required to express their opinions, reaching agreement where they can and setting out concisely where they cannot reach agreement and why they cannot.”
“The only basis on which there will be permission to the Claimants to adduce Turkish generics pharmaceutical expert evidence at trial is the following:
(1) Professor Kilgallon must serve his supplemental expert report, which must set out his response to the points set out in the Joint Statement of Prof. Kilgallon and Mr Kilic, by 4pm on 21 December 2018.
(2) There must then be a further without prejudice meeting of the experts on a date to be agreed between the parties to produce a joint statement identifying the issues on which they agree and disagree with brief reasons for any disagreement.
(3) Mr Kilic must then have sufficient time to produce his supplemental report, by a date to be agreed between the parties.
(4) In the event that there is any dispute about whether there has been compliance with the procedure set out above in sufficient time to ensure the fairness of the trial it will be for the court to determine whether the Claimants should have permission to adduce expert evidence on this topic.”