Carroo Construction Limited v Peroh (Royal Court : Hearing (Civil) : Cadin : Expert evidence) [2026] JRC 020 (19 January 2026)

judgment the MASTER: Introduction 1. This is my judgment in relation to the Plaintiff's application for permission to adduce expert evidence from Mr Jones, a Director of Henro Consulting Limited. Background 2. The background to these proceedings is set out in my judgments reported at [2025] JRC 125 and [2025] JRC 253 and I do not propose to recite it further in this judgment save to note that as a result of the Court's concerns about Mr Jones' apparent failure to engage with the Defendant's expert, Mr Friel, and his engagement with Mr Horgan instead, the Court ordered that: (i) the Plaintiff was not "allowed to rely upon the evidence of Mr Jones pending further order" ; and (ii) if the Plaintiff wished to bring an application to rely upon Mr Jones' evidence, it must make an application "supported by a full and frank affidavit from Mr Jones explaining his failures to engage with Mr Friel and the Court, and his decision to forward the draft report to Mr Horgan; detailing all communications with the Plaintiff and/or Mr Horgan and/or anyone else concerning this case other than Mr Friel; and pursuant to paragraph 4(d) of Schedule A to Practice Direction RC 17/09, exhibiting all such communications where they exist in documentary form".

3. By a summons dated 26 November 2025, the Plaintiff applied for permission to rely upon Mr Jones' evidence, together with orders that: (i) the Defendant's case to be struck out; (ii) time be extended to file a common bundle of documents; (iii) the joint expert report filed by Mr Friel be dismissed; (iv) "the Court...instruct the Defendant's expert Mr Friel to provide an unbiased report that demonstrates compliance with the Obligations of an Expert with a detailed schedule of written materials relied upon (as required by item 4(d) of RC/17/09), and tie every conclusion to specific evidence, including witness statements, invoices, and photographs from the common bundle and aligns with the expert's overriding duty to assist the court impartially and to base findings on verifiable data."; (v) the Defendant pay to the Plaintiff all of the costs to date "associated to the Defendant and his expert's deceit and failure to act in good faith throughout this process." 4. The application is supported by a 4 page affidavit from Mr Jones in which he states, amongst other things, that: (i) after the meeting of the experts on 2 September 2025, he left for annual leave on 4 September 2025 (section 2 of the affidavit) and that "My engagement with the report was therefore suspended solely due to my annual leave, and this was known to all parties, including Mr. Friel (Your QS). I reject the

claim that I failed to actively engage." (ii) the Court's assumption in paragraph 33 of the October 2025 judgment that "rather than engaging with Mr Friel to perfect their joint report, Mr Jones decided to send the draft to Mr Horgan, for his input" was incorrect in that: "I confirm that what was shared were information schedules and labour analysis spreadsheets/material reports received from the Plaintiff as part of the evidence review process, not a draft of the Joint Expert Report." (section 3 of the affidavit) (iii) in relation to the communications that Mr Jones had had, he states that: "All communications detailed above, including the relevant emails, text messages, WhatsApp messages, and other recorded media, will be exhibited to this Affidavit in support of the Application. Please note the only recorded correspondence was by email." The Parties' Submissions 5. Both parties filed Skeleton Arguments and made extensive submissions at the hearing.

6. Mr Horgan, for the Plaintiff, submitted that confusion had arisen over the Common Bundle, that Mr Friel's draft of the joint report was inadequate as it "did not cross-reference the Common Bundle, and failed to consider all material evidence" . He stressed that in contrast to Mr Friel, Mr Jones had properly discharged his obligations as an expert and in proposing amendments to Mr Friel's draft was acting in good faith, and for the benefit of the Court. He referred to what he regarded as a disparity of treatment in that only Mr Jones has been required to provide an affidavit. His solution to the current issues was for the experts to meet again and to prepare a further joint report.

7. Mr Peroh disagreed. He submitted that the experts had met, repeatedly, and each time that they had produced a report, the Plaintiff produced additional discovery or proposed amendments to the Common Bundle, necessitating a further review by the experts, which he described as "shifting the goalposts" . He submitted that Mr Jones' affidavit failed to provide the information ordered and in submissions, took the Court on a forensic examination of the documents disclosed and the correspondence. In the light of that review, he submitted that Mr Jones' evidence could not properly be admitted. Mr Jones' Affidavit 8. As I noted in May 2025, the expert evidence is likely to be determinative of the financial issues between the parties and to that extent, is a critical part of delivering a just outcome at a proportionate cost. As litigants in person, it may be challenging for the parties to conduct any proper cross examination, let alone a forensic cross examination, of the expert witnesses. To that extent, the Jurats' task of assessing the expert evidence in this case may be more difficult than usual.

9. The relatively simple requirement for the expert witnesses to meet and to produce a joint report setting out the areas of agreement and disagreement has been beset by difficulties, as noted in my October 2025 Judgment when I revoked permission for the Plaintiff to rely upon Mr Jones' evidence pending further order. I directed that if an application was to be made to adduce his evidence, Mr Jones must provide a full and frank affidavit explaining his failures to engage, detailing "all communications with the Plaintiff and/or Mr Horgan" and exhibiting "all such communications where they exist in documentary form". The purpose behind that order was to ensure that, if admitted, the Jurats would have all the material necessary to assess his testimony in the light of the concerns that had arisen.

10. Mr Jones has sworn an affidavit giving an explanation as to his conduct, and his communications with the Plaintiff. He has not, however, exhibited any correspondence. The only exhibit to the affidavit is a schedule of correspondence "between the Plaintiff/ Henro Consulting (not copied into Your QS/ Defendant)" between 31 January 2025 and 4 September 2025, and identifying the sender, the recipient and giving a description. Given that Mr Jones' first report was dated December 2024, and that report records on its face that "Henro Consulting Ltd have carried out a review of the material invoices and timesheets relating to this project, supplied to Henro Consulting Ltd by Carroo Construction Ltd" , the schedule is patently inaccurate; there must have been communication before the first report.

11. Documents were, however, provided separately by Mr Jones and Mr Horgan to the Court, but on cursory review, they did not correspond to the schedule. By an email dated 6 January 2026, my secretary notified the parties that: "Contrary to the requirements of the judgment Mr Jones' affidavit purportedly lists the communications between him and others but does not exhibit them. Insofar as the additional documents are intended to reflect those communications, they do not do so... Moreover, some of the other documents are incomplete... ... If the Plaintiff wishes to revisit Mr Jones's affidavit, there may be costs consequences but, in any event, it must do so expeditiously and in sufficient time for Mr Peroh to respond in advance of the hearing." 12. No further affidavit was filed but more documents were uploaded into Case Centre. In total, 177 pages of material were uploaded to Case Centre (Section M of the Case Centre Bundle for 14 January 2026). On reviewing the schedule and the additional documents, it is plain and obvious that: (i) the schedule to Mr Jones' affidavit is incomplete and/or inaccurate in that the additional documents identify exchanges that have not been listed in the schedule; (ii) the additional documents themselves are incomplete in that attachments to emails have not been produced.

13. Insofar as I indicated that the affidavit must be "a full and frank affidavit from Mr Jones...detailing all communications with the Plaintiff and/or Mr Horgan and/or anyone else concerning this case other than Mr Friel" , it is plainly and obviously deficient in that no conversations between Mr Horgan and Mr Jones have been listed, or otherwise referred to, notwithstanding that this was a method of communication used between them - (i) Mr Horgan's email to Mr Jones dated 6 February 2025 requests that Mr Jones ring Mr Horgan after Mr Jones' meeting with Mr Friel; (ii) Mr Horgan's email to Mr Jones of 7 April 2025 asks "Let me know when you are free for me to chat this through with you" ; (iii) in an email of 8 August 2025 Mr Jones asked Mr Horgan whether he was "about over the weekend for a catch up over the phone?" 14. The potential extent of this method of communication became apparent during Mr Horgan's submissions when he referred to: (i) "plenty of times when I have tried to tear a strip off Mr Jones", yet no such occasions are mentioned in the affidavit; (ii) having "got Mr Jones in the car" to show him the work at Mr Peroh's property. This meeting is not referred to in Mr Jones' affidavit, but is mentioned in his amended draft of the joint report in the following terms, which are silent as to the presence of Mr Horgan: "Further to the above a roadside inspection of

the visible external aspects work undertaken to the property was carried out by Henro Consulting Ltd." (iii) an occasion, after Mr Jones had provided his version of the joint report, when he and Mr Jones were sitting down, having breakfast on another job, and discussed this claim. In the course of that discussion, Mr Jones apparently said that he had had something of a "lightbulb moment" when he realised that his reports "had not been in accordance with the Practice Direction" .

15. Given Mr Jones' averment that "Please note the only recorded correspondence was by email", it does not appear that any notes of any conversations were kept. The Additional Documents 16. The critical difference between the experts arises from Mr Jones' proposed amendments to joint report sent by Mr Friel. In his affidavit, Mr Jones deposes that: "A meeting was promptly arranged and took place with Mr. Friel (Your QS) on 02 September 2025 to run through the items raised. Further information was received from Mr. Friel on the same day. Following this, Mr. Friel amended his report based on the issues raised and issued the revised draft to Henro Consulting Ltd on 03 September 2025 for final review, reducing the claim by a further 34k as result of the evidence not previously considered. It was a matter of record, known to all parties, that I was away on pre-booked annual leave from 04 September 2025. An out-of-office reply was active on my email... Whilst I was on annual leave, between 11 September 2025 and 14 September 2025, numerous emails were received from Paul Horgan in relation to the "Common Bundle" which contained a large volume of information sent to all parties. Upon my return on 14 September 2025, I immediately had to review the Common Bundle and the numerous other emails, as it is the duty of the expert witness to review all such information to ensure it has been

covered and considered within the Joint Expert Report. The review of this information took over a week due to the amount of data (albeit all was contained within previous court documents, it still required checking). Mr. Friel (Your QS) also chased for the report on 16 September 2025. Following the comprehensive review, Henro Consulting Ltd found one piece of evidence that was considered relevant and which altered the report. I issued the revised report, incorporating this finding, back to Mr. Friel (Your QS) on 25 September 2025." 17. A review of the documents now available paints a rather different picture of the events following receipt of Mr Friel's draft; the amendments made to Mr Friel's draft report; and as to the external perception of Mr Jones' independence.

18. Firstly, in terms of the events between Mr Friel's provision of the draft joint report and Mr Jones' departure on leave, the documents evidence that: (i) at 9:30am on 3 September 2025, Mr Friel emailed Mr Jones stating that: "Please see attached, in MS Word, for your review and signature. Please note that I have not amended item 8 (Contract Manager's fees) as I could not recall what the change you had suggested. I look forward to your prompt reply and I will submit to the Court without delay." (ii) at 10:54am on 3 September 2025, Mr Horgan emailed the Court seeking an extension of time for the filing of his witness statements; (iii) at 8.46pm on 3 September 2025, Mr Jones emailed Mr Horgan stating nothing more than: "I have cross referenced his list against your original list 24k, but then checked the invoices for the missing ones and he is correct " (Emphasis Added) (iv) at 9:04pm on 3 September 2025, Mr Horgan replied to Mr Jones stating: "I shall review this in the morning. Where is his labour analysis report" (v) at 10:43am on 4 September 2025, Mr Jones emailed Mr Horgan a document entitled "Updated additional discovery 18.08.2025 (1).xlsx"; (vi) at 12:49pm on 4 September 2025, Mr Horgan emailed the Court, copied to Mr Peroh and the experts, stating that: "I have just had sight of the revised labour and material reports submitted by your expert Seamus Friel. I have

noticed some obvious mistakes which I need to review then provide my comments to Henro Consultants to assist them in preparing what is the third Joint Report." 19. Despite Mr Jones working on matters related to this claim on 2, 3 and 4 September 2025, he chose not to engage with Mr Friel's draft report but emailed Mr Horgan instead. The email sent by Mr Jones at 8.46pm on 3 September 2025 must have been prompted by something; it cannot have come out of clear blue sky and the absence of narrative in the email suggests that the recipient expected it. Yet there is no explanation for this email in his affidavit, nor are there any other disclosed communications between Mr Jones and Mr Horgan for 3 September 2025 which might account for it having been sent.

20. Secondly, Mr Jones' amendments to the draft joint report comprise: (i) additional comments being added to the introduction, including the reference to the roadside inspection (noted in paragraph 14(ii) above); (ii) a minor change to the figure for missing invoices (£4,550 as opposed to £4,400) followed by the insertion of additional paragraphs referencing allegedly relevant evidence in the Common Bundle; (iii) in relation to some apparently missing scaffolding invoices those additional paragraphs conclude with the following: "... All of these services are detailed on paid invoices and the Agreed Terms state that payment signifies that the client has inspected and approved the invoiced services prior to payment. CONCLUSION REACHED The evidence shows that extended hire did occur, and the cost submitted are justified. There is no evidence to suggest otherwise." (iv) that "conclusion" is then repeated for the other missing invoices; (v) Mr Friel's draft report identified that there were 3 supplier invoices that detailed other sites, and this would have been an issue for trial (i.e. were those items delivered and used on Mr Peroh's property?) Mr Jones once again inserts paragraphs referencing documents in the Common Bundle, and concludes with a reference to the Plaintiff's "Agreed Terms" and a similar conclusion to that used in relation to the scaffolding. (vi) Mr Friel's draft

report noted various instances of labour overcharges. Once again, Mr Jones' amendment refers to documents in the Common Bundle but also includes the following paragraph, before reaching a similar conclusion to that reached in relation to the scaffolding: "Plaintiff's claimed practices, the hours on the timesheets are representative of the onsite hours only and did not include all reasonably associated times such as working through entitled breaks and calling to the suppliers. [[ Mr Friel] we still need to review some of these items on the attached spreadsheet- The plaintiff has responded and there are items for example where no reason has been provided for your deduct and the plaintiff has questioned this EG line 12 of the spreadsheet We need to through this section narrow down the field of dispute] " (emphasis added) (vii) Mr Friel's draft report noted charges being levied for labour without supporting timesheets. This should be a simple factual question upon which the experts would have to agree given that the timesheets are, or are not, available. Mr Jones' proposed amendment is in the following terms: "W3 - The witness statement of the La Ronde site foreman (Daniel Fletcher) states "I can also confirm all the labours listed under this heading were undertaken by the operatives on site as I personally assigned each of these tasks to the operative detailed on the

timesheet". All the Plaintiff's invoices provide a detailed description of the invoiced work even if further handwritten timesheets were no longer available; Q1 -Missing Timesheets December 2022 (all claimed as part of invoice 341B £3790.50 circa 46% of total hours claimed for that period ] - No handwritten timesheets are available for this period, however reviewing the invoice descriptions and the other works and materials claimed for this period (invoice 341B), this would support the fact that the labour was expended. CONCLUSION Both experts agree that it is not possible for them to decide on this item, however there is evidence and supporting witness statements now contained in the common bundle which suggest these claims are justified. There is no evidence to suggest otherwise." (viii) similarly in relation to Mr Horgan's time (referred to as the Contract Manager's Fees): (a) Mr Friel's draft recorded that: "8. The Contract Manager's fees have been charged in the sum of £14,577.50. Both experts agree that this figure is reasonable provided the associated information was properly allocated and validated. However, this was not the case." (b) Mr Jones' added the following: "Henro Consulting view is that the Contracts Manager made very detailed transparent submissions and his hours are justified and should be paid. Common Bundle items A-O The Contracts Manager issued invoices that detailed the date, material item or description of work undertaken, quantity or hours, rate and total amount charged all in accordance with the "Agreed Terms of Offer" to the Defendant".

21. These amendments are not matters of expert evidence; they are, in both fact and effect, the Plaintiff's submissions for trial in response to the experts' findings. I find it impossible to reconcile these proposed amendments with Mr Jones' statement in his affidavit that he found "one piece of evidence that was considered relevant and which altered the report." I also find it inexplicable, particularly in the absence of any explanation from Mr Jones in his affidavit, that he seemingly chose to spend a week reviewing material to amend a document, without informing or otherwise communicating with Mr Friel, when this document was intended to be a joint record of what had, or had not, been agreed at the meeting on 2 September 2025.

22. In my judgment, it is plain and obvious that there was undisclosed communication between Mr Jones and Mr Horgan after the joint expert meeting on 2 September 2025 which prompted Mr Jones' email at 8:46pm on 3 September 2025 and accounts for the limited nature of that communication. Mr Jones noted in that email that Mr Friel's materials analysis was correct, which accords with the conclusions recorded in Mr Friel's draft report about missing invoices, incorrect delivery addresses, and deliveries to other sites. Yet for unspecified and undisclosed reasons, Mr Jones subsequently amended his version of the draft report so as to assert that these material costs were nevertheless justified and "There is no evidence to suggest otherwise".

23. Although it is not necessary for me to make any findings as to what occurred, Mr Jones' proposed amendment to the section on labour overcharges suggests that far from giving his own expert opinion, Mr Jones was acting as an agent for the Plaintiff: "(SF [Mr Friel] we still need to review some of these items on the attached spreadsheet- The plaintiff has responded and there are items for example where no reason has been provided for your deduct and the plaintiff has questioned this EG line 12 of the spreadsheet. We need to through this section narrow down the field of dispute )" (Emphasis Added) 24. Indeed, that phrase "narrow down the field of dispute" is redolent of previous communications from Mr Horgan. On 13 November 2024 the Court ordered that the experts meet to prepare a joint report. On 17 January 2025, Mr Horgan wrote to Mr Peroh in the following terms (J2879 in the Case Centre Master Bundle): "My QS and I have investigated YOURQS report and attached the following for your perusal. I would appreciate it if you and YOURQS would review the attached and identify the areas in agreement and in the event of disagreeing with any points I would request that you provide the reasons why so that we may investigate this further with a view of 'narrowing the field of dispute".

25. Notwithstanding that Mr Jones had provided his report in December 2024 and was seemingly involved in these joint investigations with Mr Horgan, there is no reference in Mr Jones' affidavit to any communications between him and Mr Horgan before 31 January 2025.

26. Thirdly, this is not the only occasion on which Mr Jones has allowed the external perception of his independence to be brought into question: (i) Following the email referred to in paragraph 24 above, Mr Horgan again wrote to Mr Peroh on 20 January 2025 (J2881 in the Master Bundle) stating that: "I can confirm that my QS and I reviewed YOURQS report in detail and our analysis was, in the absence of working drawings and a full schedule of work, YOURQS has failed to fully appreciate the work undertaken by Carroo Construction Ltd, appears to have not read (or chose to ignore) details disclosed in evidence, has made numerous mistakes and assumptions and has incorrectly formatted his spreadsheet report. My QS and I felt it was important to afford YOURQS to revisit his report to avoid presenting such a flawed report before the court when it has been so poorly researched and presented." (ii) Mr Horgan's comments are also recorded in an email exchange with Mr Jones on 30 January 2025 (J2857 in Master Bundle) where he states: "Please find attached the updated review of Friels reports and my comments which I wish to discuss with you prior to making our next approach to Friel. I shall pop in about 9am to review and discuss and I hope that this meets with your approval" (iii) A joint report was filed by the experts on 7 February 2025, and on 11 February 2025, Mr Horgan emailed Mr Jones

stating that: "If Peroh had any sense he would throw in the towel now instead of spending any more money at this. Regardless, I have listed my comments on the Timesheets and the headings in the joint report and I have also inserted comments highlighted in yellow in the excel joint report, both attached." (iv) On 7 April 2025, Mr Horgan emailed Mr Jones: "Please see my notes attached and the final account spreadsheet. Let me know when you are free for me to chat you through this." (v) In email exchanges over 8 to 10 April 2025, Mr Horgan provided Mr Jones with "my report on YOURQS claims re timesheets" and then suggested to Mr Jones that "It may be worth sending a simple email to Seamus [the Defendant's expert] questioning how he is obtaining his information, is Peroh sending this to him or is he accessing the court bundle?" (vi) Mr Jones' response on 10 April 2025 was "I will just send him one confirming the meeting for Monday and giving him the court index reference numbers for the missing ones that are on the court bundle. I will just state these are the index numbers for the missing timesheets, if he then asks what does the index number relate to, we can then ask the question?" (vii) By email of 10 April 2025, Mr Horgan provided Mr Jones with "My thoughts and comments, I have also attached the final account spreadsheets with my comments which I wish to talk through with you

when you are free" to which Mr Jones responded: "Just double checking - still got these anomalies not covered by you but on SF [Mr Friel's] report Have a look and we can discuss this evening TIMESHEETS ??? 11/12/2022 Stevie Brennan 337-b... No timesheet 20/01/2023 Jono Nolan 341-b... No timesheet..." (viii) That was followed by an email from Mr Horgan to Mr Jones on 11 April 2025 in which he stated that: "I have edited the 'Labour' spreadsheet [attached) to include all Friel's entries with my comments on each line. I have highlighted the anomalies you raised in "yellow' and highlighted in 're items that Friel said were missing when they were actually dated, visible and easy to find in the Courts Bundle...." (ix) The experts then prepared an updated joint report which was circulated by Mr Jones by an email dated 17 April 2025. As I noted in the May 2025 Judgment, for reasons which were unclear, it also contained direct statements from the Plaintiff in response to the views of the experts. (x) Submission of the joint report, did not however draw a line under matters in that on 21 April 2025, Mr Horgan replied to Mr Jones stating that: "Firstly, the positive is that this report seems to have upset Peroh, which is good. There are however a few sections of this report that are quite alarming... I have added a review of the joint report (attached) and highlighted in yellow comments

that have been added to the original joint report and my comments associated in BOLD. I have also conducted a review of YOURQS claims to date, attached for your perusal. Shout me when you are free to chat this through, thank you." (xi) No response from Mr Jones has been provided and it is unclear whether there was a conversation between Mr Horgan and Mr Jones. However, on 24 April 2025 Mr Horgan sent a further email asking "Have Henro submitted the final account spreadsheet which includes the correct figures for the debit and credit errors, the missed admin and insurance charges and the final amount showing an undercharge of £2045.61?" (xii) Thereafter the experts corresponded, leading to the meeting on 2 September 2025. Discussion 27. Mr Jones' affidavit fails to comply with the requirements set out in paragraph 8 of the Act of Court dated 9 October 2025 in that it is not full and frank, does not properly explain his failure to engage with Mr Friel, does not detail all communications with the Plaintiff and/or Mr Horgan, and does not exhibit all communications.

28. Schedule A to Practice Direction RC 17/09: "1. Expert evidence shall be the independent opinion of the expert uninfluenced by any other pressures. The duty owed by an expert is to the Court and is to provide objective unbiased opinions on matters within his or her expertise.

2. An expert should not argue the case for a party.

3. An expert must consider all material facts whether they are supportive of or contrary to the ultimate conclusion of the expert.

4. An expert shall make clear:- (a) if a question or issue falls outside his or her expertise; (b) if the expert is unable to reach a definite opinion and the reasons why; (c) the facts or assumption upon which the opinion is based; and (d) all written materials relied upon, attaching a copy of such materials if these have not already been provided to the other party...

6. An expert's report must give details of the expert's qualifications, any literature or other material relied on in making the report, must contain a statement setting out the substance of all facts and instructions material to the opinions expressed..." 29. In my judgment, it is plain and obvious that Mr Jones has not been providing the Court with his "independent opinion...uninfluenced by any other pressures". Instead, he has argued the case on behalf of the Plaintiff and in so doing, has chosen not to provide all the written materials relied upon or full details of other material relied upon. He has failed to comply with the obligations set out in Schedule A to Practice Direction RC 17/09 and/or to heed the warning from the English High Court in Muyepa v Ministry of Defence [2022] EWHC 2648 (KB) : Experts should constantly remind themselves through the litigation process that they are not part of the Claimant's or Defendant's "team" with their role being the securing and maximising, or avoiding or minimising, a claim for damages.

30. At paragraph 40 of my judgment dated 9 October 2025, I held that: "(ii)...if by their conduct or that of the party instructing them, the expert's independence is or appears to be compromised, in breach of their obligations in Schedule A to Practice Direction RC17/09, the Court can decline to allow the expert's evidence to be adduced (Styles v. Att. Gen. [2006] JLR 210 ), or allow it only to be adduced on terms..." 31. Styles v Att. Gen . [2006] JLR 210 was a criminal case, but the basis of the Court of Appeal's decision was a Practice Note, issued by the Chancery Division of the English High Court, in relation to civil proceedings: "65... Where there is a relationship between a proposed expert witness and the party seeking to call him which a reasonable observer might think was capable of affecting the views of the expert so as to make him unduly favourable to that party, the evidence should be excluded (Liverpool Roman Catholic Archdiocesan Trustees Inc. v. Goldberg (No. 3)..." 32. The decision in Liverpool Roman Catholic Archdiocesan Trustees Inc v Goldberg (No 3) (Practice Note) [2001] 1 WLR 2337 , followed by the Court of Appeal in Styles , concerned the admissibility of expert evidence called on behalf of the defendant in relation to a claim against a barrister for negligent tax advice. The expert was a barrister in the same chambers as the defendant. The plaintiff

made an application to exclude the expert's evidence on the grounds of his close relationship with the defendant. Neuberger J, as he then was, stood the application over to trial holding that: "the fact that Mr Flesch has had a close personal relationship and a close professional relationship with the defendant in the sense that they had been friends and in the same chambers for a long time does not mean as a matter of law, or even as a matter of fact, that Mr Flesch is incapable of fulfilling the functions described by Lord Wilberforce and Cresswell J in Whitehouse v Jordan [1981] 1 WLR 246 and National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68 respectively" 33. The trial judge, Evans-Lombe J, subsequently disagreed with that approach. He held that the court should disregard Mr Flesch's evidence as he was unable to fulfil the role of an expert witness given his close relationship with the defendant: 11. In his report, having described that relationship, Mr Flesch said - "I do not believe that this [relationship] will affect my evidence - I certainly accept that it should not do so. But it is right that I should say that my personal sympathies are engaged to a greater degree than would probably be normal with an expert witness." 12. It seems to me that this admission rendered Mr Flesch's evidence unacceptable as the

evidence of an expert on grounds of the public policy that justice must be seen to be done as well as done. This is clear from the passage in the speech of Lord Wilberforce in Whitehouse v Jordan [1981] 1 WLR 246 , 256-257, cited by Neuberger J, where Lord Wilberforce says - "While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation." (Emphasis added.) The role of an expert witness is special owing, as he does, duties to the court which he must discharge notwithstanding the interest of the party calling him - see per Cresswell J in National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68 , 81.

13. I accept that neither section 3 of the 1972 Act nor the authorities under it expressly exclude the expert evidence of a friend of one or the parties. However, in my judgment, where it is demonstrated that there exists a relationship between the proposed expert and the party calling him which a reasonable observer might think was capable of affecting the views of the expert so as to make them unduly favourable to that party, his evidence should not be admitted however unbiased the conclusions of the expert might probably be. The question is one of fact, namely, the extent and nature of the relationship between the proposed witness and the party.

34. In my judgment: (i) given the extent of the engagement between Mr Jones and Mr Horgan and the selective nature of the communications disclosed, it is plain and obvious that Mr Jones has allowed himself to become part of the "Plaintiff's team" both in appearance and in fact, such that it would appear to a reasonable observer that his views are likely to be unduly favourable to the Plaintiff; (ii) it is impossible for the Court to make any granular assessment as to what was, and what was not, Mr Jones' independent expert opinion in the absence of full and frank disclosure, which he has failed to provide; (iii) in the light of the material now available, Mr Jones' evidence cannot possibly "be seen to be" the independent product of the expert; (iv) notwithstanding that in my October 2025 judgment, set out in paragraph 30 above, I held that it might be possible for evidence to be adduced on terms: (a) in the light of my above assessment of Mr Jones' evidence, it would not be appropriate so to do; (b) moreover, even were it to be possible for the Court to exercise its discretion to admit the evidence on terms, it would be neither appropriate nor in accordance with the Overriding Objective to do so given the Plaintiff's improper litigation conduct in causing or permitting Mr Jones' affidavit to be adduced when Mr Horgan, as counterparty to the communications, would have known that the affidavit was selective and inaccurate. (v) Mr Jones' evidence is inadmissible; (vi) the order made on 9 October 2025 under RCR 6/20(d) is therefore maintained and the Plaintiff's application is refused.

35. That decision is not determinative of these proceedings in that a trial before the Royal Court will still be required. However, the Plaintiff cannot adduce any evidence, whether directly or indirectly, from Mr Jones at trial and it cannot rely upon his expert reports (namely that dated December 2024, his draft unsigned joint report attached to his email dated 25 September 2025, or the joint reports dated 10 February 2025 and 17 April 2025) or his work product. The trial will proceed on the basis of Mr Friel's expert reports, which include the report dated 18 November 2023 and the "joint report" dated 18 September 2025. The Plaintiff's Other Applications 36. The Plaintiff seeks orders that: (i) the Defendant's case to be struck out; (ii) time be extended to file a common bundle of documents; (iii) the joint expert report filed by the Defendant's expert, Mr Friel, be dismissed; (iv) "the Court...instruct the Defendant's expert Mr Friel to provide an unbiased report that demonstrates compliance with the Obligations of an Expert with a detailed schedule of written materials relied upon (as required by item 4(d) of RC/17/09), and tie every conclusion to specific evidence, including witness statements, invoices, and photographs from the common bundle and aligns with the expert's overriding duty to assist the court impartially and to base findings on verifiable data."; (v) the

Defendant pay to the Plaintiff all of the costs to date "associated to the Defendant and his expert's deceit and failure to act in good faith throughout this process." 37. There is no basis for the Court to make any of these orders and I decline so to do. Further Directions 38. Given the manner in which the parties have used Case Centre, the Master Bundle is unworkable as it contains nearly 1,500 individual documents, running to some 5,000 pages. For the purposes of this application, my secretary and I have created a bespoke bundle that contains the relevant pleadings, the Orders and Judgments, the affidavits and witness statements, and the expert evidence. In addition, Section M " P Horgan Additional Documents" and Section N "M Peroh Additional Documents" have been added to allow the parties to add such additional documents as they think fit. In my judgment, this bundle, with the Skeleton Arguments and Mr Jones' reports removed, should form the basis of any trial bundle.

39. Witness evidence has been filed from the Plaintiff and Mr Fletcher, and from the Defendant, and their statements cross-referenced to the Common Bundle. Pursuant to an Act of Court dated 13 May 2025, such statements are to stand as evidence in chief, subject to any further Order.

40. The Common Bundle has been agreed by the parties but exists only as an excel index, with the individual entries held as separate electronic files by one or other of the parties. That Common Bundle, minus any duplications with other documents in Case Centre, will have to be uploaded for the purposes of a trial. I direct that the parties shall use reasonable endeavours to work together, and with the Court, to ensure that those documents (without duplications) are uploaded to Case Centre in a manageable form, whilst maintain the cross-referencing in the statements. I will schedule a further hearing in 28 days to assess progress and to determine the costs of this application, if not otherwise agreed.

41. In my October judgment, I indicated that absent an application to adduce Mr Jones' evidence, the Court would direct a summary judgment hearing of its own motion. Having reflected on the submissions made for the purposes of this application, the challenges presented by both parties acting in person, and the potential difficulties that might arise, I think that the most expeditious and appropriate approach is to set these claims down for trial pursuant to RCR 6/27(1), with a time estimate of 3 days (half a day for opening and closing; one day for the Plaintiff's evidence; half a day for the Defendant's evidence; and a day for Mr Friel). Authorities Carroo Construction Limited-v-Peroh [2025] JRC 125 . Carroo Construction Limited-v-Peroh [2025] JRC 253 . Royal Court Rules 2024. Muyepa v Ministry of Defence [2022] EWHC 2648 (KB) . Styles v AG [2006]JLR 210. Liverpool Roman Catholic Archdiocesan Trustees Inc v Goldberg (No 3) (Practice Note) [2001] 1 WLR 2337 . Page Last Updated: 10 Feb 2026 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII