About
In the recent decision of State House Trust v Friend Media Technology Systems the Jersey Royal Court allowed an appeal against the Master's refusal to exclude an opinion from English counsel filed in support of a summary judgment application.
Commissioner Sir Michael Birt (who is also a Justice of Appeal of the Cayman Islands Court of Appeal) held that there was no requirement to obtain the leave of the court to obtain evidence from a single expert witness, but that in this instance the opinion was inadmissible, and used the occasion to call for the introduction of a rule equivalent to English CPR 35.4. His analysis of the absence of a requirement for leave raises questions that Cayman Islands attorneys will recognise, because it is not clear that the position under the Grand Court Rules is materially different.
Background
The proceedings arise out of a shareholder dispute in which three Defendants applied for summary judgment and filed an opinion from English counsel (the Opinion) in support. The Plaintiffs sought to exclude the Opinion – the Master refused, and the Plaintiffs appealed.
The judgment
Commissioner Sir Michael Birt, hearing the appeal afresh, addressed three issues:
1. whether leave was required;
2. whether summary judgment must be decided on admissible evidence; and
3. whether the Opinion was admissible.
He answered yes to the second and no to the first and third issues. It is the first issue – the requirement for leave – that has the most significance for the Cayman Islands.
The Plaintiffs argued that Royal Court Rule 6/20(2)(d), which allows the court to "order that not more than a specified number of expert witnesses may be called", read with Practice Direction 17/09, created a leave requirement. The Commissioner rejected that submission. The rule merely empowers the court to limit the number of experts; it does not require leave. The wording is similar to, and Commissioner Birt decided has the same meaning as, the former English Supreme Court Rules Order 38, rule 4, which the English Court of Appeal in Sullivan v West Yorkshire Passenger Transport Executive held gives jurisdiction only to limit numbers, not to exclude expert evidence entirely. The absence of language equivalent to the English CPR 35.4(1), which expressly requires leave, confirmed the position.
Commissioner Birt added that he had not reached the conclusion on leave with "any great enthusiasm". He recommended the introduction of a provision equivalent to CPR 35.4, which would impose a simple requirement to obtain the court's leave to submit expert evidence, and this would allow the court to consider admissibility and case management at an early stage.
The Cayman position
GCR O38, r4 is the Cayman analogue, in materially similar terms to Jersey's RCR 6/20(2)(d): it empowers the court to limit expert numbers rather than imposing a leave requirement. On a strict reading of the GCR, no express leave requirement appears to exist. O38, r36(1) restricts expert evidence unless one of four conditions is satisfied: (i) leave of the court; (ii) agreement of all parties; (iii) an application for a disclosure direction under r37 or r41; or (iv) compliance with automatic directions under O25, r8(1)(b). The third and fourth routes are procedural steps concerning the form and timing of disclosure; they are not applications for permission to call an expert. The party-agreement route is, in particular, difficult to reconcile with a blanket leave requirement.
FSD Guide B5.1(a) provides that "[a]ny application for leave to call an expert witness or to serve an expert's report should be made at a case management conference or on a summons for directions". The use of "any" rather than "an" is conditional: it addresses what should happen if such an application is made, not that one must be made. The Guide also uses "should" rather than "must", and as a practice guide issued under the inherent jurisdiction of the court (not a statutory instrument or rule of court...
Commissioner Sir Michael Birt (who is also a Justice of Appeal of the Cayman Islands Court of Appeal) held that there was no requirement to obtain the leave of the court to obtain evidence from a single expert witness, but that in this instance the opinion was inadmissible, and used the occasion to call for the introduction of a rule equivalent to English CPR 35.4. His analysis of the absence of a requirement for leave raises questions that Cayman Islands attorneys will recognise, because it is not clear that the position under the Grand Court Rules is materially different.
Background
The proceedings arise out of a shareholder dispute in which three Defendants applied for summary judgment and filed an opinion from English counsel (the Opinion) in support. The Plaintiffs sought to exclude the Opinion – the Master refused, and the Plaintiffs appealed.
The judgment
Commissioner Sir Michael Birt, hearing the appeal afresh, addressed three issues:
1. whether leave was required;
2. whether summary judgment must be decided on admissible evidence; and
3. whether the Opinion was admissible.
He answered yes to the second and no to the first and third issues. It is the first issue – the requirement for leave – that has the most significance for the Cayman Islands.
The Plaintiffs argued that Royal Court Rule 6/20(2)(d), which allows the court to "order that not more than a specified number of expert witnesses may be called", read with Practice Direction 17/09, created a leave requirement. The Commissioner rejected that submission. The rule merely empowers the court to limit the number of experts; it does not require leave. The wording is similar to, and Commissioner Birt decided has the same meaning as, the former English Supreme Court Rules Order 38, rule 4, which the English Court of Appeal in Sullivan v West Yorkshire Passenger Transport Executive held gives jurisdiction only to limit numbers, not to exclude expert evidence entirely. The absence of language equivalent to the English CPR 35.4(1), which expressly requires leave, confirmed the position.
Commissioner Birt added that he had not reached the conclusion on leave with "any great enthusiasm". He recommended the introduction of a provision equivalent to CPR 35.4, which would impose a simple requirement to obtain the court's leave to submit expert evidence, and this would allow the court to consider admissibility and case management at an early stage.
The Cayman position
GCR O38, r4 is the Cayman analogue, in materially similar terms to Jersey's RCR 6/20(2)(d): it empowers the court to limit expert numbers rather than imposing a leave requirement. On a strict reading of the GCR, no express leave requirement appears to exist. O38, r36(1) restricts expert evidence unless one of four conditions is satisfied: (i) leave of the court; (ii) agreement of all parties; (iii) an application for a disclosure direction under r37 or r41; or (iv) compliance with automatic directions under O25, r8(1)(b). The third and fourth routes are procedural steps concerning the form and timing of disclosure; they are not applications for permission to call an expert. The party-agreement route is, in particular, difficult to reconcile with a blanket leave requirement.
FSD Guide B5.1(a) provides that "[a]ny application for leave to call an expert witness or to serve an expert's report should be made at a case management conference or on a summons for directions". The use of "any" rather than "an" is conditional: it addresses what should happen if such an application is made, not that one must be made. The Guide also uses "should" rather than "must", and as a practice guide issued under the inherent jurisdiction of the court (not a statutory instrument or rule of court...