Exclusion of Expert Evidence Maintained

15 October 2019

The Commercial Court has refused an application to set aside a tribunal decision that excluded a party’s expert evidence report.

The case of K v S[1] concerned a contractual dispute in which each party alleged the other was at fault. S, the claimant, commenced arbitration proceedings on 13 April 2017.

The defendant, K, served an expert report on 14 November 2018, in accordance with the tribunal’s directions. On receipt of the report, S raised complaints that the report was based on new legal and factual allegations, which had not been known or accepted by S; i.e. the allegations had not been included in the K’s defence, counterclaim or factual witness evidence.

K refused to withdraw the report, resulting in S making an application to have the report struck out from the record of the arbitration. S’s application was granted, preventing K from relying on the report’s contents. The tribunal held that the report contained numerous allegations that had not been previously pleaded, or sufficiently pleaded, by K. The tribunal further held that S would not have a reasonable opportunity to deal with the report, given the hearing of the case was due to take place only 2 weeks later.

K appealed this decision under section 68 of the Arbitration Act 1996, seeking an order to set aside the tribunal’s decision to exclude its expert evidence report. This was essentially on the basis that the tribunal’s decision was incorrect and the tribunal had improperly excluded material evidence from the proceedings, contrary to its duties under section 33 of the Arbitration Act 1996.

Section 68 allows a party to challenge an award on the ground of serious irregularity affecting the tribunal, the proceedings or the award. This can include a tribunal’s failure to comply with its general duties under section 33, such as acting fairly and impartially and giving the parties a reasonable opportunity of putting its case and dealing with that of its opponent.

The Court resoundingly refused K’s application, stating that the application fell at every hurdle and that the tribunal’s decision was sensible and one that any other tribunal could have reached, holding that:

  • It was not able to interfere with the tribunal’s decision under section 68 and that the decision to exclude evidence did not amount to an “award” under section 68 capable of challenge for “serious irregularity”.
  • K had already been given the opportunity to state its case before the tribunal. As such, there was no failure in due process and certainly no irregularity.
  • K could have managed the case better, by applying to amend its case and adjourning the hearing to allow S appropriate time to respond K failed to do so.

The slight irony is apparent. K wished to introduce new arguments shortly before a hearing and without allowing S time to respond, yet sought to rely on the tribunal’s section 33 duty as a reason the decision should be set aside. To have allowed the report would have likely caused greater prejudice than striking it out.

It is evident from the decision that parties are not going to be allowed to appeal a case management decision under section 68 simply because they are unhappy with the tribunal’s finding. There must be some serious irregularity or procedural unfairness to appeal under section 68 and it must concern an award.

The decision is also a lesson in case management. Parties should ensure that the scope of their expert evidence is in accordance with the permission granted and their stated case. In the event it becomes apparent that this is not the case, a timely application to amend ought to be made, so to avoid potentially damaging issues later.

[1] K v S [2019] EWHC 2386 (Comm)

Carl Arreghini Author
Carl Arreghini
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