Beware of your old expert reports, as Henry Carr J allows hearsay expert evidence in Illumina v Ariosa

Litigants may soon have an
eerie sense of expert deja vu...

In a world where the same patents and technology are litigated repeatedly against the same and different parties, one sometimes gets a sense of deja vu.  Haven't we been here before?  Didn't we just do a case like that? That was the context in which Mr Justice Henry Carr was faced in the latest hearing between Illumina v TDL & Ariosa [2019] EWHC 1159.

Over to Alex Calver (Bristows) who reports on the decision:

"Question

Does Illumnia have to get the Court's permission to rely on expert evidence, which was used in a different, earlier case and served under a hearsay notice, in these proceedings?

Answer

No - the Court's permission is not required.

Background

The hearing before Mr Justice Henry Carr concerned the second of two related technical trials, the first of which was heard in 2017.  The 2017 trial saw the joined claims of Illumina & Sequenom (& Ors) v Premaitha and Illumina & Sequenom v Ariosa (& Ors). In the former of those cases, Premaitha filed an expert report of Dr Erlich.  The current 2019 proceedings sees the same parties go to trial who formed the second case in the 2017 trial, namely Illumina & Sequenom v Ariosa. A crucial fact was that Premaitha are not a party to the current proceedings.

The Issue

Illumina wanted to rely on certain parts of Dr Erlich's 2017 report. It maintained that the common general knowledge section of this report that was submitted by Premaitha, contradicted the evidence currently being presented by Ariosa. Illumina therefore served a hearsay notice enclosing Dr Erlich's expert report in the current proceedings.

Ariosa, as well as arguing that there was no contradiction in the evidence, argued that Illumina could not simply introduce Dr Erlich's report into proceedings in this way. The question before Mr Justice Carr was whether, as a result of CPR Part 35, Illumina was required to have permission of the court to adduce Dr Erlich's report by way of a hearsay notice.

The Law

Civil Evidence Acts:  Henry Carr J first looked at admissibility of expert evidence generally, citing s.3(1) CEA 1972, which provides: "where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence." s.1(1) CEA 1995 then states further: "[i]n civil proceedings evidence shall not be excluded on the ground that it is hearsay", though s.4 allows a judge to attach appropriate weight to that evidence.

Civil Procedure Rules:  CPR 35 then provides specific rules relating to expert evidence in proceedings. CPR 35.4 provides that "[n]o party may call an expert or put in an expert's report without the court's permission." (emphasis added).  It is important to have regard for the definition of 'expert' as contained in CPR 35.2: "a reference to an 'expert' […] is a reference to a person who has been instructed to give or prepare expert evidence for the purpose of proceedings". In Rogers v Hoyle [2014] EWCA Civ 257, "proceedings" was interpreted as the current proceedings.

Case Law:  Henry Carr J cited the judgment in Rogers, which dealt with similar issues but on a different set of facts. In Rogers, the 'report' to be relied upon was an air crash investigation report that, in part, contained evidence of an aviation expert. There, the judges came to the conclusion that since this aviation expert was not instructed by the parties to the action, the report did not fall within CPR 35. As such, no permission of the Court was needed to adduce it and it was prima facie admissible as evidence.

Application

Henry Carr J agreed that the purpose of CPR 35 was to regulate the evidence of experts who had been instructed by the parties in the current proceedings. Following this approach, he found that Dr Erlich was not instructed by Illumina or Ariosa and, therefore, Part 35 had no application. No permission from the Court was needed.

The majority of Henry Carr J's conclusion was then spent addressing the concern of whether his finding would lead to a flood of hearsay notices filed to introduce previously old reports into new patent cases. He concluded it would not:

"parties should not assume they have carte blanche to rely upon whatever evidence they wish under hearsay notices". 

Despite the decision that a party need not have permission from the Court to adduce evidence such as Dr Erlich's report, the Court still retains control of evidence to be adduced by way of its discretionary  powers to exclude evidence under CPR 32.1 and having regard to the overriding objective. Indeed, Mr Justice Carr cited Phipson on Evidence, which concludes that although it was not considered in Rogers, if a document was adduced that had little weight, it could still be excluded on the basis of disproportionate costs (for example). Mr Justice Carr considered it was unlikely that the decision would see parties attempt to avoid cross-examination of their witnesses for the same reason - little weight would be attached to it. Circumstantially, in a comment that seems to apply to both the weight to be attached to the evidence as well as practical implications of the request before him, Mr Justice Carr concluded by saying that in any case, the report in issue could always have been put to Ariosa's expert in cross-examination.

What does this mean?

In cases that relate to similar subject matter to another previous case, solicitors should be live to the possibility of the introduction of previous expert reports into current proceedings, particularly where the same expert has given evidence in a previous trial. Instructing solicitors should be wary of what she/he said, especially if they did not instruct her/him on that previous occasion. However, Henry Carr J's judgment provides some comfort and scope to limit the introduction of such evidence and the weight attached to it."

In patent litigation, where the pool of testifying experts is particularly small, especially in fields where there is repeat litigation, Merpel thinks that there may be a few lawyers in London who might be thinking "time to start finding some new experts....".