Disclosure Of An Undisclosed Expert Report

Topic

The case of Odedra and another v Ball and another, [2012] EWHC 1790 (TCC), concerned an interim application for disclosure of an undisclosed expert report in circumstances where an expert valuer had prepared two reports but only one had been disclosed.

The Facts

Mr and Mrs Odedra ("O") claimed damages for nuisance, negligence and/or under the doctrine of Rylands v Fletcher as a result of the escape of heating oil from Mr and Mrs Ball's ("B") oil tank into O's property in Heddington, near Wilshire.

In 2007 O put their property on the market and received an offer of £402,500 subject to contract. The offer was subsequently withdrawn on the basis that contamination from the oil leakage had not been fully remedied. Once remedial works had been completed the property had been put back on the market, but following the collapse in property prices had failed to sell.

As its primary claim O claimed the loss of the actual sale, alternatively the diminution in value.

The parties had been granted permission to call evidence from two experts, an expert environmental consultant and an expert valuer. Ultimately neither party chose to obtain expert evidence from an environmental consultant, however, both served expert reports from expert valuers.

O served a report from Mr Dutch. The report was brief at just a page and a half. It became apparent that Mr Dutch had also produced another report apparently considering the value of the property at various dates. The second report had not been disclosed and O's solicitors advised that they did not intend disclosing it or relying on it at the hearing. O's solicitors stated that the purpose of the second report was to assist them in considering the report they anticipated receiving from B's expert. B served a report from Ms Loweth which gave an explanation for two valuation figures.

O submitted that Mr Dutch's report was a proper expression of expert opinion. B argued that the parties' solicitors had reached agreement as to the basis of the reports and that it appeared Mr Dutch had prepared the report (for which privilege was claimed) on that agreed basis, i.e. dealing with the valuation figures. Further, B's solicitors asserted that the report that had been disclosed did not contain an expression of expert opinion.

The Issues

Was expert evidence required to support O's primary claim? Was expert evidence required for the alternative way in which the claim was pleaded? Should Mr Dutch's other report be...