The High Court (Stewart J) has granted, in part, a late application for permission to rely on expert evidence.
The claimants (H) sought permission to enforce in England and Wales twelve judgments of the US District Court of the District of Columbia (the US court). A preliminary issues trial was ordered in respect of state immunity issues, including whether H had fulfilled the requirements of section 31(1)(a) of the Civil Jurisdiction and Judgments Act 1982.
Ten days after the end of the preliminary issues hearing, H issued an application for permission to rely on two experts’ reports regarding whether English law required Iran to have had a presence in the US at the time when the US proceedings were instituted and, if so, whether that requirement was fulfilled. The Lewis Report concerned the nature of the jurisdiction of the US court. The Mechling Report concerned H’s new argument that Iran’s presence at the UN in New York fulfilled any requirement of presence pursuant to section 31(1)(a).
Applying the overriding objective, informed by the factors set out in Quah Su-Ling v Goldman Sachs International  EWHC 759 (Comm) and in Foster v Action Aviation  EWHC 2930 (QB) (a late application for permission to amend), the judge held there was a good reason for not adducing the Lewis Report earlier. However, in light of his decision on the state immunity issues ( WHC 2074 (QB)), the question of the US court’s jurisdiction did not arise. As a result, the evidence in the Lewis Report would only be heard if it became critical to H’s case after any successful appeal against that decision. This was possible because it was a self-contained point. Permission to rely on the Mechling Report was refused because there was no good reason for not adducing it earlier and it had the potential to add significant complexity and delay to the proceedings.
This decision illustrates the heavy burden on parties making late applications for permission to amend or to rely on new evidence, to show the strength of the new case or the significance of the new evidence. However, where the court can grant permission without delaying the proceedings, this may help tip the balance in favour of granting permission, even in very late applications.
Credit to Practical Law.