Cases - Admiral Management Services Ltd v Para-Protect Ltd

Record details

Name
Admiral Management Services Ltd v Para-Protect Ltd
Date
[2002]
Citation
EWHC 233 (Ch)
Legislation

Civil Procedure Rules

Keywords
Expert witness - construction claim - loss and expense claim - pre-AMEC case law - costs - investigation - investigation by employees - recoverability of costs of investigation by employees - Re Nossen's Letter Patent exception - expert - expert for the purposes of costs
Summary

This decision, which pre-dated AMEC Process and Energy Ltd v Stork Engineers & Contractors BV (No 4) by just 10 days, provides a helpful synthesis of the pre-AMEC case law. Here, the claimant suspected that the defendant was wrongfully using its confidential information, to which end an order was obtained for the removal of documents and floppy disks. The claimant's employees were engaged in examining the material. The Court reasoned that:

  • The general rule is that the work of a party's employees in investigating, formulating and prosecuting a claim does not qualify for an order for costs.
  • Re Nossen's Letter Patent was an exception to this rule in that a corporate litigant could recover the costs of expert services provided by its own staff.
  • The accepted position in Re Nossen's Letter Patent was to be preferred to Sir Gordon Willmer's judgment in Buckland v Watts.
  • Richards & Wallington (Plant Hire) Ltd v A Monk & Co Ltd showed how narrow the exception was: to be recoverable, the work done by a litigant's staff had to be of an expert nature, and not simply of a fact-finding character.
  • For the Nossen exception to apply, the staff concerned must have a sufficient level of experience to qualify as experts and the nature of the work must qualify for a costs order.
  • Familiarity with a party's business does not make a witness an expert for the purposes of the recovery of costs.

In some circumstances it is possible to claim as the costs and other expenses incurred by experts before commencement of the action by the issue of proceedings. This may even sometimes extend to work done by a party's own in-house experts, provided the evidence being prepared is genuinely that of an expert, and not merely gathering of facts, and provided it avoids the need to employ an external expert.

Although, in general, work by a litigant's employee in investigating and preparing material for legal proceedings would not be claimable as costs in the action, the above could, in appropriate circumstances, constitute an exception.

This case concerned alleged improper use by the defendants of confidential information belonging to the claimants. The experts involved in preparing the claim may or may not be used subsequently as expert witnesses. The judge noted that there are now

'special rules applicable to expert witnesses, leading to a distinction between an expert adviser and an expert witness instructed to prepare a report for the court'.