Case Study

Clifford James successfully represented a Claimant on appeal in a case where a court did not grant a Claimant permission to rely on an expert report.

Overturning an order to refuse the Claimant permission to rely on an expert report in a diminution, His Honour Judge Freeman on appeal ruled that expert evidence is necessary for a Claimant reach the burden of proof in a diminution case:

“If such evidence is not provided, then that head of damage will be shut out. So much is clear from decisions such as Payton v Brooks [1974], where the Court of Appeal made it clear that repair costs do not always represent the full amount of diminution but if diminution in value is to be shown over and above the cost of repairs, then appropriate expert evidence is required.”

“All of this could have been avoided by the Respondent to the appeal recognising that the Appellant was in fact entitled to expert evidence in relation to diminution and had they acceded to the present appeal and accepted the position, then substantive costs would have been avoided.”

Stewart Fairhurst who acted for the Claimant before His Honour Judge Freedmen commented:

“This is an important procedural calcification in relation to the need for expert evidence that a Claimant needs in order to prove a diminution loss they have suffered.”