Expert witnesses: what’s the price of a change of mind?

MJ Gleeson submitted a planning application for 139 dwellings at Runcorn – or rather, in the vicinity of Runcorn Chemicals Complex. The Health & Safety Executive (HSE) was a tad sniffy and advised against it on health grounds. No matter, said the local council’s planning department, adding it had extensive experience and history with the chemicals industry and “had a robust approach to taking risks posed by such developments”. On top of that, the council took advice from a specialist risk management consultant firm with extensive experience as expert witness.

Fair enough, methinks. Not so the HSE. It coaxed the secretary of state for housing to call in the planning permission. And so the stage was set for an all-singing, all-dancing piece of litigation with solicitors and barristers and expert witnesses. The case is called: the King (on the application of Halton Borough Council) vs the Secretary of State for Levelling-up, Housing, Communities & Local Government. 

Now, here is a spoiler in more than one sense. During the High Court hearing, the very experienced expert appointed by the council and hitherto wholly in support of granting planning permission completely changed his mind! When the HSE’s barrister cross-examined him on day three of the inquiry, the expert agreed that if he were in a planning inspector’s position, he would have to advise the secretary of state strongly against the grant of planning permission. I bet the council’s barrister let out a noise, from somewhere deep down, that echoed across the court. That’s a spoiler and a half.

Did the expert behave unreasonably by changing his mind? No, his job is a duty to the court. He would be behaving unreasonably if he kept up his sleeve a new-found opinion that torpedoed his party’s case

You might guess the expert’s concession was enough for the borough council to withdraw its intention to give planning approval – and, yes, it did. The next spoiler is that the HSE was awarded all its legal costs by the High Court judge – but then the three-judge Court of Appeal took them away. Spoilsports, perhaps.

Let’s go through the topic of who pays legal costs; more particularly, ask who pays the costs in planning inquiries. The ordinary position in planning is much the same as in construction adjudication. Each side, win or lose, pays its own costs. If, however, a dispute comes to the High Court as a construction dispute, then the rule is that “costs follow the event”. This usually means the net winner gets its costs paid by the losing party. But the overarching right of the judge or arbitrator is to apply discretion. In other words, the tribunal can depart from “costs follow the event” if the tribunal sees merit in giving some relief to the losing party for some reason or other.

In the Halton planning case, the first judge, sitting alone, decided that the volte face of the expert, being a complete change of mind, caused the council to quit and concede defeat. So he awarded the HSE its legal costs. He parted company with the usual planning approach of each side paying its own costs.

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Ah, but the Court of Appeal took a different approach. First the court explained that in planning proceedings the parties normally meet their own expenses. That’s because all parties are expected to behave reasonably to support an efficient and timely process and to encourage local planning authorities to property exercise their development responsibilities so as to stand up to scrutiny. The Court of Appeal began a search for unreasonable behaviour, which, if found, would lead to costs being awarded against the party judged to have been unreasonable.

The temptation is to find that the collapse of the council’s case was of the council’s own making, given a member of its own team gave evidence that was demonstrably flawed and unsound and admitted so by its own expert. The Court of Appeal said, however: “The mere fact that the evidence of an expert witness being demolished in cross-examination does not, of itself, lead to the conclusion that the party calling that expert has been guilty of unreasonable behaviour. Instead, it may be said that where an expert witness accepts points put to him in cross-examination, which are adverse to the case of the party calling him, he is performing his duty to the tribunal in question.” 

The Appeal Court pointed to a remark in the case of R vs Cornish, where the well-known construction industry Judge Coulson said, of an expert who proved “obviously unreliable” when giving his evidence: “In my view, it would be unfair to say anything went ‘wrong’: In some ways, what happened was a good example of the adversarial trial process in action.”

It seems to me there are two questions here. First, was it unreasonable for the council to rely on this expert or did it become unreasonable? The answer is no: he was a competent expert. Second, did the expert behave unreasonably by changing his mind? No, his job is a duty to the court. He would be behaving unreasonably if he kept up his sleeve a new-found opinion that torpedoed his party’s case. His primary duty is to the court. The HSE did not get its costs. 

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple