Late disclosure will be allowed if it helps the court to arrive at a just and fair decision

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This is how it should and ought to be. Many of my opponents blow hot and cold about late disclosure. But there is a fundamental premise that a trial judge should have all the available evidence to enable him/her to reach just and fair decision.

GRUPO HOTELERO URVASCO SA v CAREY VALUE ADDED SL (2012) ~ QBD (Comm) (Eder J) 23/02/2012

The applicant (V) applied to adduce expert evidence related to delay in a construction project.

The parties were in the midst of protracted construction-finance litigation, in which the trial date had already been adjourned twice. The applicant conceded that its application came at a late stage, but submitted that this was due to the late disclosure by the respondent (G) of 15,000 pages of documents which focused V’s attention on the issue of delay.

G argued that the application should be refused as: (1) V had known about the delay issue from an early stage and had decided to deal with it as a question of fact, indicating that the expert evidence was not necessary; (2) there were a number of third-party fact witnesses who might be relevant to the issue of delay and might need to be deployed in relation to developing the expert evidence, and it was not reasonable or practical to ask them to “drop tools” over the next few months to assist in the case; (3) producing expert reports might cost as much as £1 million between the two parties.

HELD: (1) The necessity of expert evidence in the instant case could not be determined without seeing an expert report. However, the expert’s evidence would at least arguably assist the court. The necessity of that evidence would have to be determined at a later time. (2) The unreasonableness or impracticability of time demands on third-party fact witnesses was a wholly unspecific submission. Without detailed evidence of any particular impracticality, V’s application would not be denied on that basis; but a timetable would be produced which would, so far as possible, protect G going forward. (3) In the context of a case that had as much as £100 million at issue, the prospect of the parties incurring £1 million in expenses relating to the expert evidence was an insufficient reason not to allow the evidence to be adduced.

Application granted

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