Rita El Azzi v Steven Maglis and Ors (15/265128); Liliane Ibrahim v Steven Maglis (15/286895)

[2017] NSWDC 149

District Court

New South Wales

Medium Neutral Citation:	Rita El Azzi v Steven Maglis & Ors (15/265128);   Liliane Ibrahim v Steven Maglis (15/286895) [2017] NSWDC 149
Hearing dates:	7 June 2017
Decision date:	16 June 2017
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Notices of Motion dismissed
Catchwords:	Client legal privilege; dominant purpose; leave to rely on expert report served late; “exceptional circumstances”
Legislation Cited:	Civil Procedure Act 2005 Compensation to Relatives Act 1897 Evidence Act 1995 Uniform Civil Procedures Rules
Cases Cited:	Jones Dunkel (1969) 101 CLR 298 Newcap Reinsurance Corporation Limited (in liq) v Renaissance Reinsurance Limited [2007] NSWSC 258 Yacoub v Pilkington (Australia) Limited [2007] NSWCA 290
Category:	Procedural and other rulings
Parties:	Rita El Azzi (Plaintiff) Steven Maglis (1st Defendant) Sharokina Benjamin (2nd Defendant) Remond Fayad (3rd Defendant) Simone Reynolds (4th Defendant)   Liliane Ibrahim (Plaintiff) Steven Maglis (Defendant)
Representation:	Counsel: D L Del Monte (Plaintiff El Azzi) K P Rewell SC (1st Defendant) D P O’Dowd (Plaintiff Ibrahim) K Rewell SC (2nd Defendant)   Solicitors: C Chivers (2nd and 3rd Defendants)(El Azzi) B Anderson (4th Defendant)(El Azzi)
File Number(s):	15/26512815/286895
Publication restriction:	Nil

Judgment ON TWO NOTICES OF MOTION

1. This judgment is in respect of two Notices of Motion, both filed on 19 May 2017 in proceeding 15/2285895 (the “Ibrahim proceedings”). The Motions are also relevant to a related matter of El Azzi v Maglis and others 15/265128 (the “El Azzi proceedings”), and it is the parties’ intentions that the determination of the motions is binding in both matters. In fact, at the hearing of the Motions on 7 June 2017, the court was informed that the Ibrahim proceedings had resolved, and it was stood over to the Note Settled List on 13 June 2017 at 2pm.

2. The El Azzi proceedings are set down for hearing on 9 October 2017.

3. The first Notice of Motion filed on 19 May 2017 was filed by the first defendant’s solicitors seeking the following prayers for relief:

“(1) Pursuant to Rules 31.19 and 31.28 of the Uniform Civil Procedure Rules, and ss 56, 57 and 58 of the Civil Procedure Act 2005, the defendant’s liability report, authored by William Keramidas and served on 7 May 2017, be admissible in matter number 15/265128 and 15/286895 …

(3) The plaintiff to pay the defendant’s costs of the motion.”

4. The second, third and fourth defendants to the El Azzi proceedings, were present for the hearing of the motion, but took no active role.

5. The second Notice of Motion was filed on 19 May 2017 by the plaintiff’s solicitors in the Ibrahim proceeding. It sought the following prayers for relief:

“(1) An order from the court that the plaintiff have access to documents produced in packet S-2 by Christopher Hall of Hall Technical Pty Limited.

…”

In lieu of an order sought for payment of costs pursuant to s 99 of the Civil procedure Act 2005 the following order was sought:

“(3) An order that the first defendant pay the plaintiff’s indemnity costs of the motion.”

Background to the applications

6. To understand the nature of the matters before the Court for determination, the following chronology of events is relevant:

9 September 2015 – Plaintiff, Rita El Azzi, commences proceedings by filing Statement of Claim seeking damages pursuant to the Compensation to Relatives Act 1897, arising out of a motorcycle accident on 4 October 2012, in which her husband was killed.

December 2015 – The plaintiff was ordered to file her liability expert evidence on or before 25 March 2016.

23 May 2016 – The plaintiff served a report by her expert, Mr Alan Joy.

14 July 2016 – Solicitors for the first defendant send letter of instruction to Mr Chris Hall.

5 September 2016 – The plaintiff in the related matter, Liliane Ibrahim, serves copy of report of Dr Gibson.

22 September 2016 – First defendant’s solicitors, who also act in the matter of Ibrahim, forward a qualifying letter to Mr Hall.

9 November 2016 – Mr Whealy, solicitor employed on behalf of the first defendant, has telephone conference with Mr Hall.

10 November 2016 – First defendant briefed Senior Counsel

14 November 2016 – Court appointed mediation takes place

17 November 2016 – Matters set down for hearing on 9 October 2017 with consent of all parties

21 November 2016 – Senior Counsel recommends to first defendant’s solicitors that a different expert be qualified, i.e. Mr W Keramidas.

21 November 2016 – First defendant’s solicitor has conversation with assistant to Mr Keramidas, and is advised that Mr Keramidas is on sick leave.

31 January 2017 – First defendant’s solicitor advised by assistant that Mr Keramidas could prepare an urgent report by May 2017.

31 January 2017 – Solicitor for first defendant forwards qualifying letter to Mr Keramidas.

7 February 2017 – First defendant’s solicitor forwards letter to the plaintiff’s solicitor advising of delay in service of the defendants’ liability expert evidence until mid May 2017

14 March 2017 – The plaintiffs issue subpoena on Mr Hall returnable on this date. Documents produced for which privilege is claimed on 16 March 2017.

4 May 2017 – Mr Keramidas provides report to first defendant.

4 May 2017 – First defendant serves report of Mr Keramidas on the plaintiffs’ solicitors.

7. Also relevant to the determination of the issues between the parties are the following matters that did not happen:

1. The defendant did not serve its liability evidence by 13 May 2016 when ordered to do so on 8 December 2015.

2. On 25 May 2016 the Judicial Registrar noted the defendant’s default and ordered that its liability report should be served by 3 August 2016.

3. On 17 November 2016 the Judicial Registrar ordered that the defendant’s liability report should be served by 27 January 2017.

4. At no time prior to 5 May 2017 was the court informed by the first defendant’s solicitors that they had qualified Mr Keramidas to provide a report, that Mr Keramidas was incapacitated, and that he was not in a position to provide a report until May 2017.

8. As the Notices of Motion concerned common factual material, an order was made that the evidence relied on by each party on each motion be evidence on the other motion. The plaintiff relied on the following evidence:

Affidavit of Wendy Hunt, solicitor for the plaintiff, sworn on 2 May 2017

Affidavit of Wendy Hunt, solicitor for the plaintiff, sworn on 15 May 2017

9. The defendants relied on the following evidence:

Affidavit of Matthew Seisun, sworn 21 April 2017

Affidavit of Matthew Seisun sworn 6 June 2017

Affidavit of Jonathan Whealy, solicitor, sworn on 6 June 2017

10. The plaintiff also tendered an email dated 6 June 2017 from Mr Keramidas (Ex 1), setting out the reasons for his incapacity following surgery in November 2016.

11. Only Mr Seisun was required for cross-examination and his evidence is referred to below.

The evidence

12. The two affidavits of Ms Hunt relied on by the plaintiffs, set out the communications between the plaintiffs’ and defendants’ solicitors about the defendants’ reliance on expert evidence. Following the mediation on 14 November 2016, Ms Hunt became aware that the defendants had qualified as their expert Mr Chris Hall of Hall Technical Pty Limited. On 13 February 2017 she received correspondence from the defendants’ solicitors advising their inability to comply with the court timetable, as their expert had undergone surgery and was ill, and was unable to complete his report until May 2017. Ms Hunt then made enquiries of Mr Hall’s office and was informed that Mr Hall had not had surgery and was not ill. Ms Hunt then issued a subpoena for the file of Mr Hall, which documents were returnable on 14 March 2017, and are now the subject of the claim for privilege to be determined on the plaintiffs’ Notice of Motion. In her second affidavit, sworn on 15 May 2017, Ms Hunt enclosed correspondence forwarded to the defendants’ solicitors annexing a Notice to Produce to them, to produce “all receipts, tax invoices and all accounting documentation pertaining to work undertaken, and/or charged for, by Christopher Hall, trading as Hall Technical Pty Limited, and Mr William Keramidas …”. Also required to be produced were “all qualifying letters to Mr Keramidas …”.

13. The affidavit of Mr Matthew Seisun, sworn on 6 June 2017, set out the chronology of events, which has been summarised above.

14. Mr Seisun’s affidavit sworn 21 April 2017 deposed to the claim for privilege made over the four pages of handwritten notes generated by Mr Hall, which were the sole documents created by him. Mr Hall had not authored or prepared a report.

15. In his affidavit, Mr Seisun acknowledged the delay by the first defendant in obtaining its liability evidence. The affidavit also set out, argumentatively, that the service of Mr Keramidas’ report in May 2017 left five months from the date of service to the date set down for trial. If leave were granted pursuant to Pt 31 r 18 of the UCPR, it would allow the court to have all relevant evidence at its disposal before comprehensibly ruling on the issues in dispute.

16. The affidavit deposed that the service of liability evidence five months before the hearing date will not unduly prejudice the plaintiff, and that arrangements could be made for the Standard Orders on hearing to be complied with by the experts conferring, preparing a joint report, and giving concurrent evidence.

17. Mr Seisun was cross-examined at some length on his affidavits. He was an experienced litigation solicitor and had been a partner of the defendants’ solicitors, namely Messrs Curwoods. He had the carriage of both matters and supervised the work of the employed solicitor, Mr Whealy. He had on one prior occasion qualified Mr Chris Hall to prepare an expert report in a case concerning a motorcycle. Mr Seisun was asked about the letter dated 14 July 2016 to Mr Hall (Ex 2). After setting out certain assumed facts and qualifying material, that letter requested that Mr Hall provide an opinion on twelve separate matters. It then stated, “please contact the undersigned by telephone after you have reviewed your brief and before you begin preparation of your report”.

18. Mr Seisun gave evidence that he had a telephone attendance on Mr Hall immediately preceding the mediation on 14 November 2016, but had not referred to that in his affidavit. At that stage, Mr Seisun gave evidence that he had not formed an opinion that Mr Hall was an expert who could not be used or relied on by the defendant. Further, there was nothing that Mr Hall said to him that led him to believe that Mr Hall was not either appropriately qualified or capable of providing an opinioin on the matters sought. Mr Whealy had spoken to Mr Hall on 9 November 2016, at a time when Mr Seisun was aware that the defendant was in breach of orders made by the court to serve its expert liability evidence on or before 13 May 2016.

19. Notwithstanding that the first defendant had received the plaintiff’s expert report of Mr Joy on 23 May 2016, he had waited until 14 July 2016 to qualify Mr Hall. Further, he did not pursue Mr Hall at all until November 2016. He was aware of a further court order on 25 May 2016 for service of the expert report by 3 August 2016. It also had been breached.

20. Mr Seisun was also aware that on 17 November 2016 a further order was made that the defendant serve its expert liability report by 27 January 2017.

21. Mr Seisun had sought instructions to withdraw the request to Mr Hall for a report following receipt of advice from Senior Counsel. That had been carried by an administrative assistant, and Mr Hall had rendered an invoice dated 27 February 2017.

22. Mr Seisun had attended the mediation on 14 November 2016 on behalf of the first defendant. At that time he had a view of what Mr Hall’s opinion might be, but described it as a “work in progress”. At that time he denied having concerns about the ability of Mr Hall to provide an opinion. The delay in preparing a report was caused by the inability of Mr Hall to view certain CCTV footage of the incident. That delay occurred between July and November 2016. It was on 21 November 2016 that Senior Counsel recommended another expert, namely, Mr Keramidas.

23. It was put to Mr Seisun that no effort had been made by the defendant to qualify Mr Keramidas until 1 February 2017, when the qualifying letter was sent to him. He responded that a discussion had taken place by telephone with Mr Keramidas’ assistant, and there was no point sending a qualifying letter while Mr Keramidas was incapacitated.

24. In re-examination, Mr Seisun was asked to clarify that part of Ex 2, extracted at [17] above. He deposed that the only purpose of that call was designed to ensure that the expert had all the material he required. He said they had a preliminary discussion about the expert’s opinion, and the content of that discussion was relevant to the mediation. When asked why the defendant had failed to comply with orders made by the court for service of the expert report, Mr Seisun said it was his view that the defendant was entitled to wait for the plaintiffs’ reports. Those reports were not served until 17 May 2016 in the case of Ms El Azzi, and 5 September 2016 in respect of Ms Ibrahim.

25. It was conceded by learned Senior Counsel on behalf of the defendant, that at no stage did Mr Whealy, solicitor, inform the Judicial Registrar that the first defendant had changed its expert, and the reasons for the delay in settling the first defendant’s liability evidence. The Judicial Registrar was informed for the first time of those matters on 5 May 2017.

Defendants’ submissions re privilege

26. Learned Senior Counsel for the defendant submitted that the documents over which privilege was claimed, which were inspected by the court, were each comprised of contents of a confidential document prepared for the dominant purpose of the client, i.e. the insurer, being provided with professional legal services so as to bring them within s 119(b) of the Evidence Act 1995. The fact that the notes made by Mr Hall were prepared by him for discussions with the solicitors, would turn on the basis that the letter qualifying him had asked specifically that he contact the solicitor to discuss the matter, in other words, to express any preliminary view. On that basis it was submitted that the notes fell squarely within s 119. The dominant purpose was providing the client with professional legal services in the proceedings, and there could be no other purpose. It was further submitted that the fact that the expert was no longer qualified in the proceedings made no difference to that analysis. The defendant relied on the judgment of White J in Newcap Reinsurance Corporation Limited (in liq) v Renaissance Reinsurance Limited [2007] NSWSC 258.

The plaintiffs’ submissions

27. Counsel for the plaintiff submitted that there was an obvious flaw in the defendant’s position. The defendant had assumed that the purpose of the handwritten notes being prepared was with a view to discussing this matter with the defendant’s solicitors, as opposed to the expert formulating an opinion in his own right.

28. Counsel submitted that the annotations made to the qualifying letter were not dated and it could not be established whether those notes were made in the course of discussions with the defendant’s solicitors or in formulating his own opinion.

29. It was submitted that the determination of what was the dominant purpose for those notes, could not be determined as a matter of inference, but rather, could only be determined by direct evidence. In this case, Mr Hall could have been called to give evidence of when the notations were made and why, relying on Newcap Reinsurance Corporation Limited, supra, at [30]. Thus, an inference arose pursuant to Jones Dunkel (1969) 101 CLR 298 that, as no explanation was given as to why Mr Hall was not called to give that evidence, his evidence would not have assisted the defendant. The court was left with a situation where it did not know when the notations were made or why they were made. The onus was on the defendant to establish what the purpose was and the defendant had not established that. Further, if they were prepared for the formulation of Mr Hall’s expert opinion, that did not satisfy the dominant purpose test in s 119 of the Evidence Act.

30. In the defendant’s solicitor’s letter dated 14 July 2016 (Ex 2), the relevant request was “after you have reviewed your brief and before you begin preparation of your report”, Mr Hall was to telephone the solicitor. Thus, the contact with the solicitor was to be made before he had begun to consider his report. The purpose of the phone call was to ensure that the expert was qualified with all relevant documents and to avoid the need for a supplementary report. It could not be assumed from that situation that the notes were made for the dominant purpose proscribed. The documents therefore could not be privileged, applying Newcap Reinsurance Corporation Limited, supra.

Submissions in reply re privilege

31. Learned Senior Counsel for the defendant submitted that there was nothing in the judgment in Newcap Reinsurance Corporation, supra, that prohibited the drawing of inferences as to the purpose for which the documents were brought into existence, and therefore the principle in Jones v Dunkel, supra, had no application here.

32. It was submitted that Mr Hall had no further involvement in the proceedings. He was merely asked at the time the letter, dated 14 July 2016, was sent to him, to review the brief and to prepare himself to discuss the matter. He was not asked to prepare a report at that time, but to prepare himself for a telephone conversation. The clear inference to be drawn is that he did so by making notes, and that he made those notes before his telephone conversation with Mr Seisun. The evidence of Mr Seisun established that he and Mr Hall discussed the matter in some detail. Mr Seisun’s evidence was that he was concerned only to ensure that Mr Hall was not analysing the matter in a way that would not be of assistance to the court. The clear inference was that the notes made were for preparation for that telephone conference, and therefore the notes were privileged. It was further submitted that it was clearly unlikely that the notes would be made during the telephone conversation because of their detailed nature.

Determination on the plaintiff’s application re privilege

33. Section 119 of the Evidence Act 1995 provides as follows:

“119 Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or

(b) the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceedings before the court), or an anticipated or pending Australian or overseas proceedings, in which the client is or may be, or was or might have been, a party.”

34. “Confidential document” is defined in s 117 to mean:

“A document prepared in such circumstances that, when it was prepared:

(a) the person who prepared it, or

(b) the person for whom it was prepared,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.”

35. In Newcap Reinsurance Corporation Limited, supra, White J said as follows:

“18 Paragraph 119(b) is important. It has been held at common law legal professional privilege does not attach to an expert’s own documents, prepared by him for the purpose of expressing an expert opinion in litigation but which were communicated to the client or the lawyer of the client, and do not reveal communications between the expert and the client, or between the expert and the lawyer for the client (authorities and citations omitted)

…

20 Section 119 of the Evidence Act expressly applies both to confidential communications between the client and a third party, or between a lawyer acting for the client and third party, for the dominant purpose of the client being provide with professional legal services relating to legal proceedings, and to the contents of a confidential document prepared with that dominant purpose, whether the document is delivered or not …”

36. As to the determination of the dominant purpose for which a document is brought into existence, his Honour sent on to say:

“29 Section 119 directs attention to the dominant purpose for which each confidential communication or confidential document comes into existence. The dominant purpose for which a final expert’s report or final witness statement is brought into existence would presumably be for the purpose of being laid before the court as a witness’s evidence. Prima facie, it would not be privileged (Attorney General (NT) v Maurice at [480]). However, draft reports, and notes used in preparing a report may stand at a different position, particularly where the expert has been retained by the parties’ solicitors and it is expected that the parties’ lawyers will advise on the contents of, and settle the form of, the report. There is nothing improper in such a course. It is not inconsistent with the expert’s paramount duty being the duty to the court and not to the client retaining him or her.

30 It will be a question of fact, to which the expert may be required to put his or her oath, as to whether any draft reports prepared and kept by him, and working notes prepared by him or his staff, were brought into existence for the dominant purpose of the plaintiffs being provide with professional legal services. If they were prepared for the dominant purpose of the draft report being submitted for advice or comment by the plaintiff’s lawyers, then they would be privileged under s 119. However, if they were brought into existence for the dominant purpose of the expert forming his or her opinions to be expressed in the final report, then it could be arguable that they were not made for the dominant purpose of the plaintiffs being provided with professional legal services relating to the proceedings.”

37. As stated by White J at [35] of his judgment, the issue of determining whether confidential documents, whether communicated or not, were brought into existence with the requisite dominant purpose is not an easy one to determine.

38. I am not persuaded that in determining that question of fact, what White J said at [30] mandated that the expert is required to give evidence on the question, and that only by direct evidence can that question be determined. Particularly so, as in the case here, when the expert’s instructions are withdrawn, and no draft report, let alone final report, is prepared by him.

39. The distinction drawn between the final reports, and draft reports and notes used in preparing a report, applies here. Although the time when the notes were made cannot be established with any certainty, it is clear that they were made for the purpose of the telephone discussion that was to take place with the defendant’s solicitor. A further inference may be drawn that some of the notes, namely, those on the copy letters dated 14 July 2016 and 22 Septembe 2016, were made during the telephone conference with those solicitors. On either basis, they were made, and therefore the document was prepared, for the dominant purpose of the solicitor’s client being provided with professional legal services relating to the proceedings, and therefore come within the privilege provided by s 119 of the Evidence Act. That privilege is an extension to the common law position. White J said at [34]:

“Section 119(b) of the Evidence Act extends the privilege to confidential documents, whether communicated or not, provided they were brought into existence with the requisite dominant purpose. The question, however, is what that purpose is. If an expert prepares a draft report, or notes for the report, with the dominant purpose of a draft report (whether the precise draft then prepared by the expert or an intended later draft) being furnished for comment or advice by the lawyer, then it is privileged. If not, it is not.”

40. I therefore find that the notes the subject of the claim for privilege were prepared for the dominant purpose at the time they were made for preparation of a draft report, following discussion with the defendant’s solicitors, and were made for the purpose of discussion for comment or advice by those solicitors, and are therefore privileged. The plaintiff’s Notice of Motion will therefore be dismissed

Defendant’s submissions on defendant’s application to rely on expert report served out of time

41. The defendant acknowledged that he was not entitled to the relief sought unless the court was satisfied there were exceptional circumstances that warrant the granting of leave for it to rely on the report of Mr Keramidas served on 4 May 2017. Here, the exceptional circumstances were found in the incapacity suffered by Mr Keramidas, who had visited the site on the first day of his return to work in May 2017.

42. Learned Senior Counsel referred to the construction of the expression “exceptional circumstances” given by Campbell JA (Tobias JA and Handley AJA agreeing) in Yacoub v Pilkington (Australia) Limited [2007] NSWCA 290 as follows:

“(a) Exceptional circumstances are out of the ordinary course or unusual, or special or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered. …

(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors. …

(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. …

(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision. …

(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case.” (Authorities and citations omitted).

43. His Honour also held in the context of an application pursuant to r 31.18(4) of the UCPR, that any determination as to exceptional circumstances would need to bear in mind the explicit statement of objectives on the court in the management of litigation contained in ss 56 to 59 of the CPA.

44. Senior Counsel for the defendant acknowledged that the defendant had failed to tell the court or the plaintiff of the defendant’s switch in experts or the delay that would occur in the provision of the report. However, it was submitted there was no prejudice caused to the plaintiff, or indeed to the third and fourth defendants in the matter of El Azzi, and there was still four months in which the plaintiff could obtain a reply to the report of Mr Keramidas from their expert. The defendant apologised to the court and the plaintiff for that delay caused by Mr Keramidas’ incapacity, however, it was submitted that in the interests of the justice, the defendant be entitled to rely on his report in answer to the two experts employed by the plaintiffs, namely, Mr Joy and Dr Gibson.

Plaintiff’s submissions

45. The plaintiff submitted that if the court granted the relief sought, the second and third defendants would experience a 10 week delay in obtaining expert reports of their own. That would jeopardise the hearing date.

46. It was submitted that Mr Seisun was a solicitor of 12 years experience and that he had qualified Mr Hall as an expert on one prior occasion. In the period May 2016 to November 2016, no attempts have been made by the defendant’s solicitors to progress Mr Hall’s formulation of his opinion so as to comply with the court timetable. The first delay occurred following receipt of the plaintiff’s expert’s report. There was a delay from 23 May 2016 until 14 July 2016 before the first letter was sent to Mr Hall. No explanation was given for that delay. There was then a further delay until November 2016 before both solicitors spoke to Mr Hall. The cross-examination of Mr Seisun had revealed that it was only after conferring with Mr Rewell of Senior Counsel that they received advice to qualify Mr Keramidas. That occurred on 21 November 2016. There was no evidence before the court in respect of the competing expertise of Mr Hall and Mr Keramidas, and the defendant’s preference for one expert over another did not amount to exceptional circumstances.

47. The real question here was whether changing experts as a matter of preference amounts to exceptional circumstances. It is clear that the defendant’s solicitors were aware that Mr Keramidas was unwell. However, it was submitted that his incapacity was “otiose”. The defendant was aware of his inability to comply with the timetable, however, their silence was deafening. There was no evidence provided as to other experts who may have been available.

48. The plaintiff submitted that the incapacity of Mr Keramidas was not an exceptional circumstance. It pre-dated the request made of him on 21 February 2017 for him to provide an opinion.

49. Further, the construction as to exceptional circumstances set out in Yacoub, supra, as set out above were not trivial matters. Here, what happened was the defendant changed their expert. That change was not brought about for any reason other than Senior Counsel’s advice to do so. There had been a lack of candour by the defendant’s solicitors before the Judicial Registrar from November 2016 until April 2017 in the face of the duty on parties contained in s 56 of the CPA to facilitate the just, quick and cheap resolution of matters. What occurred was merely a default by the defendant in serving its expert report, which had endured since 13 May 2016.

Determination

50. I am not persuaded here, that the unavailability of Mr Keramidas, due to his surgery in late 2016, amounted to exceptional circumstances which would warrant the exercise of the court’s discretion to grant leave to the defendant to rely on his report, which was served well out of time. My reasons are as follows. A timetable for service of expert reports was first set down on 8 December 2015. Whilst there was some delay in the plaintiff serving her report by 25 March 2016, the report of her expert, Mr Alan Joy, was served on 23 May 2016. There was then an unexplained delay by the defendant’s solicitors in qualifying Mr Hall, by letter dated 14 July 2016. A further letter was sent to Mr Hall on 22 September 2016 after receipt of the plaintiff, Ms Ibrahim’s, report from Dr Gibson, which was dated 5 September 2016. No discussion then occurred between the defendant’s solicitors and Mr Hall until 9 November 2016, just prior to a Court appointed mediation that took place on 14 November 2016.

51. On 21 November 2016, the defendant’s solicitors obtained advice from Senior Counsel to qualify Mr Keramidas. On 21 November 2016, the defendant’s solicitors were advised that Mr Keramidas had just had surgery, and was “out of action”. Nothing then occurred until 31 January 2017 when the defendant’s solicitors were further advised by the administrative assistant of Mr Keramidas that he could do an urgent report in May 2017.

52. The first defendant had been aware since December 2015 of its need to serve an expert’s report in compliance with court orders. This matter, together with the Ibrahim matter, was listed for further Directions Hearing before the Judicial Registrar on 14 July 2016, 25 July 2016, 17 November 2016, and 5 May 2017, when further orders were made.

53. On 13 February 2017, the plaintiff’s solicitor became aware for the first time that the defendant was relying on the illness of its expert as an excuse for its failure to comply with various timetables that had been made for the service of liability evidence. However, the plaintiff’s solicitor was not advised that there was a change in expert, which led to her making her own enquiries of Mr Hall’s office.

54. Section 56 of the CPA provides that the overriding purpose of that Act and the rules of court is to facilitate the just, quick and cheap resolution of the real issues in proceedings. Subsection (3) provides as follows:

“(3) A party to Civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.”

55. Here, the failure of the defendant’s solicitors to comply with the directions of the court as to service of its liability evidence, and the complete lack of candour to the court as to the reasons for the delay in doing so, represent a breach of the statutory duty they have pursuant to s 56(3). That lack of candour also mislead the plaintiff, and led to the plaintiff’s solicitors incurring unnecessary costs in terms of the enquiries that were made of Mr Hall.

56. Further, the incapacity of Mr Keramidas does not amount to an exceptional circumstance. There is nothing exceptional about people, including expert witnesses, requiring surgery from time to time. However, there were other people with the relevant expertise in the area, including Mr Hall. Having regard to all of the circumstances of this case, once the defendant’s solicitors were advised that Mr Keramidas’ opinion would not be available until sometime in 2017, they knew they could not comply with the court’s directions. Rather than qualify another expert, they did nothing for another two months until Mr Keramidas volunteered that an urgent report could be compiled by him in May 2017, in other words, in another three months’ time. Again, the defendant’s solicitors did nothing to either inform the court or the plaintiff’s solicitors of that position. Thus, the circumstances that brought about the delay were caused, not by the incapacity of Mr Keramidas, but by the defendant’s solicitors’ failure to properly prosecute the defendant’s case. That does not amount to exceptional circumstances. Further, when the lack of candour of those solicitors to the court is taken into account, that would mandate against the exercise by the court of its discretion to grant an indulgence to the defendant.

57. I am further not persuaded that if the defendant was allowed to now rely on the report of Mr Keramidas, there would not be further delay caused to the plaintiff and other parties to the proceedings, jeopardising the hearing date set down with the consent of the first defendant on 17 November 2016.

58. For those reasons, the first defendant’s Notice of Motion will be dismissed.

Conclusion and orders

59. For the reasons set out above, both Notices of Motion are to be dismissed with costs. The orders I make are as follows:

1. The plaintiff’s Notice of Motion filed in the matter of Liliane Ibrahim v Steven Maglis on 19 May 2017 is dismissed.

2. The defendant’s Notice of Motion filed in the same matter, on 19 May 2017 is dismissed.

3. The above orders are to be entered in the matters of Liliane Ibrahim v Steven Maglis (15/286895), and in the matter of Rita El Azzi v Steven Maglis & Ors (15/265128).

4. I will hear the parties as to the costs orders that are to be made on each Notice of Motion.

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Decision last updated: 19 June 2017