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Supperstone J. said,

60 We have given careful consideration to the November report of [C’s expert]  (together with the 7 December Response and the Supplementary Report), and the submissions of counsel.

61 The whole approach in the November report is very different from the approach in the June proposal. In her Supplementary Report (at para 4.5) [C’s expert] said:

“In advance of access to the NES/ASHE microdata I did not know whether regression analysis would be possible.”

[C’s counsel] says [that C’s expert] is not to be criticised in achieving the task she set out to achieve in June by a technique which she did not realise was possible until the Autumn of this year. We observe that since before December 2014 [C’s expert] has in fact been considering how best to estimate the Claimants’ potential earnings if they had not been blacklisted. However the real problem with what is now being proposed is that it is, as she describes it, “research” (see para 28 above). We are not satisfied that “there exists a recognised expertise governed by recognised standards and rules of conduct” (see para 8 above) in respect of the proposed methodology.

62 [C’s counsel] made the point that this is an application for permission to adduce expert evidence; it is not a trial of the merits of [C’s expert’s] report. That is correct. However we have felt it necessary to give the report the degree of examination we have,

first, in the light of the detailed competing submissions from counsel;

second, in order to test its cogency…;

and third, in order properly to assess whether this expert evidence is “reasonably required to resolve the proceedings” (see CPR 35.1 at para 3 above).

63 Further we are not satisfied that what is proposed will assist the court in determining the matters which are in issue. We are not persuaded that [C’s expert’s] new approach is sufficiently more accurate than using traditional centile methods in circumstances where

(1) she has ignored the Claimants’ prior earnings,

(2) there is no microdata for the period before 1990 and therefore the centile method is used for half the relevant period for a significant number of lead claimants; and

(3) there is still the need to conduct Stage 2 which we are not confident will be as easy to do as [C’s expert] suggests (see para 66 below). We do not consider that the time and expense that will be involved in conducting the analysis proposed by [C’s expert] is proportionate.

64 In our view [the contributing expert’s] part of the November report does not comply with the requirements of either the PD or the Guidance. It does not set out properly the facts, the modelling or the methodology used, or the discussions between himself and [C’s expert]. All that [he] sets out is the equation that he has used; and none of his workings are exhibited. Further the Defendants may well…have considerable difficulty in identifying an academic with specialist expertise similar to that of [the contributing expert] who, given the limited explanation of [his] contribution to the report, can assist them in adequately responding to that part of the report in time for the start of the trial.

65 The different specialisms of [C’s expert] and [the contributing expert] are likely to require the Defendants to instruct two persons with similar expertise, both of whom will require access to the ONS data. D’s counsel raised in clear terms the Defendants’ concern about access to the data at the July hearing (see para 23 above). Access to the data is even more critical now that [C’s expert] has adopted a new approach in the November report. In our view the Defendants have legitimate concerns about access to the data. We do not think that any of the suggestions made by [C’s counsel] meet [D’s counsel’s] point that the Defendants are entitled to have access to any data they may wish to use which may involve multiple applications between now and the conclusion of the trial. We consider that there are likely to be real practical problems in obtaining access to the microdata.

66 In the June proposal [C’s expert] set out what was to be done at stage 2We are not satisfied that that work can as easily be done by lawyers as [C’s expert] suggests. Further, for the reasons put forward by [D’s counsel…we do not consider that the work that will be done on stage 1 will assist the Court materially without the work on stage 2. The June proposal involved a two-stage process to “provide valuations tailored to the circumstances of the individual Lead Claimants” (see paras 11-13 above).

67 Finally there is no consideration in the November report of any alternative methodologies. Obvious alternatives are doing what [C’s expert] was suggesting in the June proposal, or using ASHE 90 with some adjustments. In June she was proposing to disaggregate ASHE figures to be adjusted with the particulars of the particular claimant. There is no explanation in the November report as to why this does not remain a possible alternative approach. We agree with [D’s counsel] that a serious omission from [C’s expert’s] proposed exercise is its failure to use the Claimants’ prior earnings (say for three years prior to the start of the claim) as a factor in predicting future earnings.

68 For the reasons we have given this application is dismissed.

Edited for ease of reading.

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