Morgan & Baker v. Hinton Organics

Transcript date:

Tuesday, April 8, 2008

Matter:

Court:

High Court

Judgement type:

Interim judgment

Judge(s):

Bursell J

Transcript file:

IN THE HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION
BRISTOL DISTRICT REGISTRY
Case No: 7BS90899

Greyfriars
Lewins Mead
Bristol
BS1 2NR

8 April 2008

Before:
HIS HONOUR JUDGE BURSELL QC

B E T W E E N:

FRANK MORGAN and CATHERINE BAKER

and

HINTON ORGANICS (WESSEX) LIMITED

 

Transcript from a recording by Ubiqus
Cliffords Inn, Fetter Lane, London EC4A 1LD
Tel: 020 7269 0370

 

 

MR J HYAM (instructed by Richard Buxton Environmental and Public Law) appeared on behalf of the Claimants
MR R WALD (instructed by Osborne Clarke) appeared on behalf of the Defendant

 

JUDGMENT
(Approved) 
JUDGMENT

JUDGE BURSELL:

1. In this case the defendant is the operator of a recycling and composting facility occupying land at Queen Charlton Quarry, Charlton Field Lane near Keynsham in Bristol. In order to carry out their work of recycling the defendant requires a license issued by the Environmental Agency. That license includes inter alia a condition, condition 5.2.1 appearing at page 3.92 of the court bundle. It reads as follows:

"Measures shall be implemented and maintained throughout the operational life of the site to control and monitor emissions of odours from the site in accordance with this condition and Section 7 of appendix 10 of the working plan. The objective of these measures shall be to minimise the release of odours from the specified waste management operations beyond the site boundary and to prevent releases that are likely to cause pollution of the environment or harm to human health or serious detriment to the amenity of the locality."

It continues at 5.2.2:
"All emissions to air from the specified waste management operations on the site shall be free from odours at levels as are likely to cause pollution of the environment or harm to human health or serious detriment to the amenity of the locality outside the site boundary as perceived by an authorised officer of the agency."

2. Over a number of years a number of local residents, and more particularly the two claimants in this, namely Mr Morgan and Mrs Baker, have complained, as I understand it, both to the Environmental Agency but also to the Local Authority, which is known by the acronym BANES, their complaints being in relation to the alleged emission of odours from the site.

3. Indeed it is clear that on one occasion BANES did adopt what Mr Wald, on behalf of the defendants, has called an enforcement stance against the defendants in relation to the omission of odours, as appears at page 4.33. It is also clear at page 3.117 that BANES adopted a similar enforcement stance against the defendants, although that may have been in relation to a fire rather than in relation to odour. It is clear from the papers before me that BANES required, certainly at one stage, if not more stages, of the ongoing history of complaints, that complaint logs should be kept by Mr Morgan and Mrs Baker and other local residents.

4. Losing patience, as I think the claimants would say, they have ultimately brought an action for private nuisance against Hinton Organics (Wessex) Limited. In relation to that action Master Rose gave permission for expert evidence to be called by both sides. The defendants therefore approached a company called SLR to provide to them such expert evidence. That evidence appears before me in the bundle in relation to three statements produced by a Mr Branchflower, an associate of SLR. It is unfortunate that in the first of those statements at page 2.74 of the bundle no declaration was appended as is required by the Civil Procedure Rules, although such declarations were appended to the two subsequent follow up statements.

5. It has transpired in these proceedings that a Mr Christopher Herbert, who was certainly in 2003 and part of 2004 employed by BANES, has subsequently joined SLR as an associate and it appears that in his position as an associate of SLR he has given expert advice to BANES in relation to the defendant's premises.

6. It is right to say that initially when these proceedings were commenced they included allegations by the claimants not only in relation to odour but also in relation to air pollutants and also noise (see the particulars of claim at page 1.8 and especially paragraph 6 at 1.9).

7. Mr Hyam on behalf of the claimants in his skeleton argument, which was received by the court last week, raised a question as to what weight should be placed upon Mr Branchflower's evidence bearing in mind that he was and is employed by SLR. At paragraph 19 of his submissions he says this:

"The claimants doubt much reliance can be placed on Mr Branchflower as an independent expert for the reason that SLR Consulting was appointed by BANES to advise on waste planning matters as early as 29 August 2006, one urgent matter being the three planning applications of the defendant."

It goes on:
"see also the closure statement at page 2.94 and the absence of any statement attached to the first report compliant with CPR 35.10."

8. I began to hear the evidence of Mr Morgan, the first claimant in this case, yesterday morning. During that evidence Mr Morgan particularly gave evidence of a strong smell which he alleged was being emitted from the defendant's premises on 2 October. In cross-examination Mr Wald drew Mr Morgan's attention to Mr Branchflower's report in which he stated that on that self same day he, Mr Branchflower, had attended at the relevant area and failed to detect any odour which could be regarded in his view as a nuisance. It was at that stage that Mr Hyam rose to his feet to object to Mr Branchflower's evidence being relied upon at all. It is fair to say that before evidence began I had already pointed out that unless and until Mr Branchflower had appended to his first statement the declaration required by CPR 35.10 he would not be permitted to give evidence, but Mr Wald, not unsurprisingly, indicated that such a declaration would be forthcoming in fact this morning. The fact that it is not yet before me does not matter for present purposes.

9. After some short argument I rose so Mr Wald could take further instructions and this morning when argument recommenced Mr Hyam reconfirmed that his application no longer pertains to a question of weight that should be accorded to Mr Branchflower's evidence, but rather went to the entire admissibility of Mr Branchflower's expertise.

10. In any odour case it is of course a matter of opinion as to whether or not an odour is of a particular strength or as to how malodorous it may be. That evidence can be given by lay witnesses without their being experts. Mr Branchflower of course puts himself forward as a particular expert because of his particular experience in odour matters and because of tests that he has undergone in relation to the acuity of his nose and also because of his independence from the matters actually in contention.

11. The way that Mr Hyam puts the matter against the defendants is this: that Mr Herbert, now an associate of SLR, is advising BANES. Mr Branchflower, also an associate of SLR, is advising the defendants. Nobody in court is privy to the advice that has been given to BANES by Mr Herbert on behalf of SLR, but Mr Hyam argues that it is a fair inference to draw from matters which I will come to analyse later on that such advice may embrace matters of smell, even if it also deals with other pollutants.

12. He says, that being so, problems of independence may arise in two particular ways. Firstly Mr Hyam, on behalf of the claimants, seeks to point out that at least on one occasion, as I have already intimated, BANES has issued an abatement notice in relation to odours against the defendants. Mr Wald, although he does not put it in quite this way, suggests that what is sauce for the goose is sauce for the gander and that therefore he is equally entitled to rely upon the long periods of time when BANES had not sought to enforce any matters in relation to odour agents the defendants.

13. As I have said, nobody in court is privy to the advice given by Mr Herbert to BANES. There seem to be three possibilities. Firstly, that he advised that in fact the defendants are committing a statutory nuisance in his opinion, or he is neutral about the matter, or he may have advised that no statutory nuisance is in his opinion being committed by the defendant. Mr Hyam says that if Mr Herbert's advice is the latter, namely that no statutory nuisance is being committed by the defendants, a problem might arise as far as SLR is concerned if Mr Branchflower were to advise that in fact odours were such that any nuisance, statutory or otherwise, were being perpetrated by the defendants and in those circumstances the question of his independence vis-à-vis the court becomes particular in issue. He also says that this receives a particular expression in relation to the occasion of 2 October, to which I have already made reference, because if Mr Herbert on behalf of SLR has indeed, although we do not know, advised BANES that there is no nuisance being committed there would or might be pressure to which Mr Branchflower might accede, consciously or sub-consciously, not to suggest that there had been a nuisance committed on 2 October.

14. Mr Hyam draws my attention to the case of Liverpool Roman Catholic Archdiocesan Trustees v Goldberg (3) [2001] 1 WLR at 2337. That report is of a practice note handed down by Mr Justice Evans-Lombe following his judgment in the particular case. In paragraph 12 of that practice note he says this:

"It seems to me that the admission renders Mr Fletcher's evidence unacceptable as the evidence of an expert on grounds of 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 at 256 to 257 cited by Mr Justice Neuberger where Lord Wilberforce says:

"Whilst some degree of consultation between experts and legal advisors 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 un-influenced as to form or content by the exigencies of litigation."

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 Mr Justice Cresswell, J in National Justice Compania Naviera SA v Prudential Assurance Company Limited (The Ikerian Reefer) (1993) 2 LR 68 at page 81. 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 of 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 conclusion 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."

15. The relevance of this particular case, in my view, is the quotation from Whitehouse v Jordan in which Lord Wilberforce emphasises that it is necessary that expert evidence presented to the court should be, and should be seen to be (I emphasise those words "and should be seen to be"), the independent product of the expert.

16. What is more, Mr Hyam draws my attention to the case of Toth v Jarman, which is briefly summarised in the current White Book at the bottom of page 953 in these terms:

"In Toth v Jarman [2006] EWCA Civ. 1028 the claimant raised for the first time on appeal that a medical expert had a conflict of interest because he was a member of the cases committee of the Medical Defence Union, which had represented the defendant in the claim. The Court of Appeal held that this information could have been obtained before the trial and would not have affected the outcome as the doctor had ceased to be a member some time before the trial. However, the Court of Appeal said that experts' potential conflicts of interest should be disclosed at an early stage in proceedings and experts might add to the declaration at the end of their report that they had no such conflict."

In particular, from the actual judgment of the case, Mr Hyam has drawn to my attention that which was said by the Court of Appeal at paragraph 100, where the President Sir Mark Potter says:

"We start with a point of principle. Does the presence of a conflict of interest automatically disqualify an expert? In our judgment an answer to that question is no. The key question is whether the expert opinion is independent. It is now well established that the expert expression of opinion must be independent of the parties and the pressures of the litigation."

Authority for this can be found in paragraphs 1 and 2 of the guidance which Mr Justice Cresswell gave in the Ikerian Reefer case, as summarised on page 938 to 9 of the Civil Procedure 2006: 
"Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert's uninfluence as to the formal content by the exigencies of the litigation. 2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate."

The President then goes on to set out the provisions of CPR 35.3 and then continues:
"However, while the expression of an independent opinion is a necessary quality of expert evidence, it does not always follow that is sufficient condition in itself. Where an expert has a material or significant conflict of interest the court is likely to decline to act on his evidence or indeed to give permission for his evidence to be adduced. This means it is important that a party who wishes to call an expert with a potential conflict of interest should disclose the details of that conflict at as early a stage in the proceedings as possible."

Then at paragraph 111 the President continues:
"We proceed on the basis that time for disclosing the existence of a possible conflict of interest is when the report of the expert is first served on the other parties. It may be earlier if the permission of the court is sought to adduce a particular named expert witness. If, however, the conflict of interest only arises after that time, the appropriate time for disclosure will be the first practical date thereafter."

Then at paragraph 112:
"Mr O"Rourke suggests that when the report of Professor Hull was served on the appellant the view was likely to have been taken that his membership of the cases committee was an immaterial conflict of interest, that that was a reasonable view to take and that therefore any non-disclosure should be excused. We can understand that in the absence of guidance from the court a party who calls an expert witness at trial or serves an expert's report in advance of trial may be aware of a potential conflict of interest, but consider that it is not material and that it therefore need not be disclosed. However, for the future we do not consider that a party should take the course of non-disclosure. We say this because it is for the court and not the parties to decide whether a conflict of interest is material or not. The court may take a different view from that of the parties as to whether an expert has a conflict of interest, which might lead the court to reject the independence of his opinion."

Then he refers to the Liverpool Roman Catholic Archdiocesan Trustees case and continues:

‘similarly, in the interests of transparency and of deflecting suspicion. The other party ought to have the information as soon as possible. We do not consider that the parties can properly agree that a conflict of interest which is otherwise disclosable need not be drawn to the attention of the court. A party who is in the position of wanting to call an expert with a potential conflict of interest, other than an obviously immaterial kind, should draw the attention of the court to the existence of the conflict of interest or possible conflict of interest at the earliest possible opportunity. By the same token, it is obviously desirable for the other party to make any objection that it may have to the admission of expert evidence as at an earlier stage in the proceedings as practical. It follows that in this case we can consider that Professor Hull's position as a member of the cases committee and Council of the MDU should have been disclosed in or at the time of his report."

Then paragraph 113:

"The obligation to disclose the existence of a conflict of interest, in our judgment, stems from the overriding duty of an expert, to which we have already referred and which is clearly laid down in CPR 35.3, and also from the duty of the parties, to help the court to further the over-riding objection of dealing with cases justly. CPR 1.3, the courts need to be assisted by information as to any potential conflict of interest, so that they can decide for itself whether it should act in reliance on the evidence of that expert."

17. In this case I am informed by Mr Wald, and accept, that Mr Branchflower's immediate boss, a Mr Stolling, took it upon himself to speak to Mr Herbert in order to satisfy himself that no conflict arose within SLR in September 2007 when Mr Branchflower was instructed within SLR. In my view the fact that Mr Stolling felt it was necessary to make that inquiry shows that he himself recognised that the question of conflict of interest might arise. In my view, in the light of that which is said by the Court of Appeal in Toth v Jarman, it was therefore incumbent upon Mr Branchflower to draw the attention of the court to this question of possible conflict of interest in his report. It is therefore particularly unfortunate that in that first report he never appended the usual declaration required under CPR 35.10. I appreciate that Mr Wald tells me that Mr Stolling satisfied himself that no conflict did arise, but as the case of Toth v Jarman makes clear it is not a matter for the internal decision by the expert or his boss or indeed of the defendant who seeks to call Mr Branchflower, but a question for the court to decide whether or not a conflict arises.

18. In those circumstances it seems to me that Mr Branchflower, and therefore the defendants, have failed to meet their obligation to the court in this particular regard.

19. I return to the particular facts of this case. It appears from the papers in front of me, namely page 4.83, that on 15 May 2003 Mr Herbert, then employed by BANES, made a site visit to Queen Charlton. It says, and I quote,
"Chris walked to Mr O's house but no odour was present there." 
Then at page 4.84 he continues:

"Dropped in to ask (it is clear it is Mr Osborne) if there had been any problems recently. No new problems were raised but Mr O re-stated his long standing concerns regarding odour from Hinton Organics."

It is therefore, in my view, clear, even if, as Mr Wald argues, Mr Herbert was primarily concerned with planning that he nonetheless regarded the reporting in relation to odours as part and parcel of the duties of his employment. Indeed, on 20 February 2004, see page 4.88, there is again a note of a site visit to Hinton Organics which states, and I quote:

"CH visits site specifically to check for odour at Woollard Lane because of the weather conditions. There was a strong north east wind blowing from the site to Woollard Lane. There was a faint to low odour, pine, noticeable between Sunny Acres and Rosewood Lodge. Main noise source was a reversing bleeper."

He then goes on a little later to speak of odour only being noticeable along Charlton Field Lane heading towards Woollard Estate. It is however clear, in my view, from the fact that Mr Herbert specifically went to check for odour that Mr Herbert regarded it, as I have already said, as part and parcel of the duties of his employment.

20. Certainly Mr Morgan addressed a number of his complaints in relation to odour to Mr Herbert, although it seems to me unnecessary to go into all the details of those complaints.

21. Mr Hyam has also drawn my attention to page 4.89, which also deals with odour, and to 4.95, also referring to odour, although Mr Herbert is not mentioned. He argues that it would be odd if those references were not in relation to Mr Herbert because of his previous involvement in relation to odour investigation. However, in the light of that which has been drawn to my attention by Mr Wald in relation to the involvement of Mr Bratt in relation to odour, see 4.56, 4.58 and 4.64, I do not think that particular inference can be drawn.

22. It seems that some time after November 2004 Mr Herbert left BANES. I am told that he then joined another company before joining SLR in the spring of 2005. It was thereafter, of course, that he then, in his capacity as an associate of SLR, advised BANES in relation to the defendant's site.

23. Mr Hyam draws to my attention the fact that although Mr Branchflower reports as an individual associate, nonetheless the instructions were given to SLR and that appears from the wording in his first statement at pages 2.74 and 2.95. At 2.74 it reads:

"SLR Consulting Limited has been appointed by Hinton Organics (Wessex) Limited to undertake a site specific risk assessment of potential odour releases from the composting of organic predominantly green waste products at their facility near Keynsham, Bristol."

And that is underlined by what is said at 2.95.

24. Mr Hyam also draws my attention to the map which is produced by Mr Branchflower which appears at page 2138. That is a plan which apparently was produced in relation to a risk assessment in relation to bio-aerosol emissions from Hinton Organics. Mr Hyam originally suggested that that map must have been produced for the report being made by Mr Herbert to BANES and therefore demonstrated that there were no Chinese walls in place within SLR to prevent cross-fertilisation between people involved in advising different parties. I am told by Mr Wald, and of course accept, that in fact that map does not emanate from Mr Herbert's report but a report produced from Mr Richmond Kingsbury, as I understand it yet another associate within SLR. However, even accepting that as I do, Mr Hyam nonetheless argues that the fact that Mr Branchflower could obtain that map from Mr Richmond Kingsbury shows that no Chinese walls are in place, at least in relation to those two reporting gentlemen, and therefore argues that it is a fair assumption that there is no such Chinese wall between Mr Branchflower and Mr Herbert.

25. Mr Hyam also draws my attention to page 2.187 in Mr Branchflower's supplementary report of February 2008, paragraph 88, which deals with the question of BANES and odour and, more particularly, to page 2.192, paragraph 128, which says:

"Based on EA (that is Environment Agency)/BANES reports and my assessments, I consider that whilst odours may, on occasion be perceivable at the claimants' properties, they would not have been of a frequency, intensity or unpleasantness to constitute "offensive" odour or to represent an unacceptable level of odour impact."

Mr Hyam says that Mr Branchflower seems therefore to be seeking to exonerate BANES from any failure to act against the defendants and that this may demonstrate a lack of independence in so far as what is going on inside SLR is concerned.

26. Mr Wald in response states that Mr Herbert and Mr Branchflower have different specialisms within SLR and he draws to my attention curricula vitae which he has taken from the internet in relation to Mr Branchflower and Mr Herbert from SLR. It is quite clear that within the heading "Key Areas of Expertise" Mr Branchflower sets under the column "Air Quality" odour impact assessment, whereas Mr Herbert sets out his areas of expertise in relation to matters primarily of project management, public inquiries and planning and no odour is referred to. Nonetheless, that which appears in the curricula vitae only speak of "key" areas of expertise and it does not follow that they may not, particularly in the planning field, also embrace on occasions matters of odour. As is quite apparent Mr Herbert did deal with odourduring the time when he was actually employed by BANES. Mr Wald also argues that it was only Mr Hill or Mr Bratt within BANES who advised about odour when Mr Herbert was employed by BANES. That I do not accept for the reasons that I have already explained.

27. Mr Wald states that Mr Branchflower says that Mr Herbert would not be advising about odour when at SLR. Nonetheless that statement is not on oath and of course in regard to this particular argument is self serving in so far as Mr Branchflower is concerned. I say that as a legal description, rather than in attempting to import any impropriety as far as Mr Branchflower is concerned.

28. The second point made by Mr Wald was in relation to page 4.33, a letter from Mr Herbert as the Senior Planning Officer, Minerals and Waste within BANES to a Mr Cunningham at the defendant's company, which shows that whilst at BANES Mr Herbert was adopting an enforcement stance against the defendants and, Mr Wald argues, that if that is so Mr Branchflower in his report is bucking a trend.

29. I also note that at 3.117, as I have already said, there was an abatement notice which may well have arisen in relation to a fire at the defendant's premises. Again, this is an example of BANES adopting an enforcement stance against the defendants while Mr Herbert was employed by them.

30. Nonetheless, even if two examples can be sufficient to create a trend, something which I somewhat doubt, those two occasions of course were when Mr Herbert was employed by BANES, and not at a time when Mr Herbert was employed as an associate by SLR.

31. Mr Wald's third point is that where justified as on 1 July 2005 BANES did not shirk its duty to bring proceedings against the defendant. That of course again is true and related to an occurrence on 28 June 2005, but that occasion post-dates Mr Herbert's employment by BANES and therefore, in my view, does not take this particular consideration any further.

32. Mr Wald's fourth point is that, if anything, the two matters to which I have referred have meant Mr Branchflower appears even more independent than might otherwise be thought because, as Mr Wald put it, he would be seen as being swimming against the current if indeed there were a current to swim against. But again it seems to me that that does not really take the case very much further as far as my present consideration is concerned because, as I have already said, these are at times when Mr Herbert was no longer employed by BANES. I say that because it seems to me that any conflict which may appear to arise can only do so when SLR through Mr Herbert is advising BANES at the same time as SLR through Mr Branchflower is advising the defendants.

33. Mr Wald's fifth point is this: that BANES is a public authority with no axe to grind and therefore it should not be assumed, as I understand his argument, that they are going to be influenced improperly by anything that may occur. And that therefore the argument that BANES have only on two occasions attempted to enforce matters against the defendant is a strong argument as far as the defendants are concerned. The problem about that argument, although it has real strength, is that in fact BANES do use the defendants to recycle green waste from premises within their own jurisdiction. I am not so concerned by the fact that they also buy compost generated from the waste from the defendants. But it might be feared, by those with some cynicism in relation to public authorities, that there may be a tendency to permit the defendants to take upon their premises more tonnage of waste than their license permits, merely so that the Local Authority can fulfil its duties in relation to the disposal of such waste. I am not saying that such a cynical approach is the correct one, although I can understand that somebody standing back might take a different view.

34. I will come back to the sixth point in a moment.

35. The seventh point that Mr Wald makes, although he emphasises that he regards it important and the fact that it is number seven should not mean that it comes at the bottom of his list, is when I consider the question of Mr Branchflower's independence the question is: independence from what? Initially he argued that the way that Mr Hyam now puts the matter is an attempt to re-craft the flawed approach that had emanated in relation to an interim injunction originally imposed by Mr Seymour QC sitting as a Deputy High Court Judge in this particular case. However, on further consideration, as I understand it, Mr Wald felt that he over-stated that suggestion and indeed it probably did not run at all, a view with which I equally concur.

36. The eighth point put forward by Mr Wald is that on his instructions SLR has three odour experts of which Mr Herbert is not one and therefore it is not surprising that Mr Stolling was able to satisfy himself that no conflict could have arisen once Mr Branchflower was instructed. Of course neither I nor, as far as I am concerned, anybody else is privy to the inquiries that Mr Stolling felt it necessary to make but, for the reasons that I have already given, just because SLR has three particular odour experts does not, in my view, mean that Mr Herbert may not, in his planning capacity, also regard it as incumbent upon himself to embrace, to some extent at least, the question of odour. And as I have already made clear in my view it was and remained the duty of Mr Branchflower, and because of that the defendant, to raise the question of conflict with the court and also with the claimants, even though SLR were themselves satisfied that no actual question of conflict arose.

37. I bear very much in mind that which the President said in the case of Toth v Jarman at paragraph 100, namely:

"Does the presence of a conflict interest automatically disqualify an expert? In our judgment the answer to that question is no. The question is whether the expert's opinion is independent."

38. The real question in this case is whether an independent observer of this case, properly understanding the legal principles involved, might feel that the relationship within SLR was capable of affecting the views of Mr Branchflower so as to make them unduly favourable to the defendant. I put it in that way because of the quotation from the Liverpool Roman Catholic Archdiocesan Trustees Case at paragraph 13, which I have already quoted from but which I quote again, namely:

"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 then unduly favourable to that party, his evidence should not be admitted, however unbiased the conclusion of the expert might probably be."

In other words, the question is what the reasonable observer might think, looking from outside in, but bearing in mind that because BANES is not a party to this particular action the question of independence is, as it were, at one remove from that where it normally arises.

39. I have come to the conclusion not only that the defendants should have raised this possible conflict of interest at the time that Mr Branchflower's first statement was served upon the defendants, but that an independent observer, against the background of factors I have endeavoured to outline, might reasonably feel that Mr Branchflower was not sufficiently independent to give an unbiased and independent opinion to this court. I have to say that in reaching that conclusion I have found it a difficult exercise. I have absolutely no doubt, if this question had been raised with me when the pre-trial review came before me on 19 February, that against that background and against the conclusion that I have just expressed, I would have made it clear that Mr Branchflower should not continue as an expert in this case.

40. However, it is necessary for me to return to the points made by Mr Wald and, in particular, to the sixth point to which I said I would return. In that point Mr Wald referred me, quite properly, to the overriding objectives which appear in CPR 1.1 and I read them as part of this judgment:

"These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly. Dealing with a case justly includes, as far as is practicable;

(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate:

1. to the amount of money involved,
2. to the importance of the case,
3. the complexity of the issues,
4. to the financial position of each party.

(d) ensuring that it is dealt with expeditiously and fairly.
(e) allotting to it an appropriate share of the court's resources whilst taking into account the need to allot resources to other cases."

41. Mr Wald points out that in this case the defendant's application comes very late in the day and time is of the essence. That it is important that the claimants, if there is a nuisance, should be entitled to their remedy as soon as possible. No doubt too, although Mr Wald did not expressly say so, it is important to the defendants that this case should be dealt with as soon as possible.

42. He also says that there is a limited number of odour experts in the country. He says that there are only two locally and that local knowledge is important. When I pressed him about that he revised the way he put that argument, to say local visits are important. In fact, Mr Branchflower, although he drove past the site on a number of occasions, only specifically refers in his report to four site visits and in my view in a case such as this it would not be inappropriate to expect an expert from outside the locality to visit on four or on a similar number of occasions. Therefore locality seems to me not the strongest of arguments.

43. He also argues that there are other questions of the sources of emissions and their frequency other than from the defendants. For example, it could be in relation to what is spread upon the fields. Not an example that Mr Wald gave, but that is one example that arises elsewhere in the papers. In my view any expert from however far afield would be able to deal with those particular questions of other sources of odour and frequency, even travelling from as far afield as Newcastle, although I accept that the balance of convenience must be to employ a local expert if at all possible and I have little doubt that that was the reason why SLR were in fact instructed.

44. It is also clear, without going into detail, that the question of the financial position, certainly of the claimants and certainly according to one argument put forward by the claimants at the PTR in relation to the defendants, there is a real question of the financial position of both parties and therefore, if this matter is taken out of the list and a re-trial takes place, the question of costs and the financial positions of a party is a very important one.

45. As far as the importance of the case is concerned, I am sure that it has no national importance but I have little doubt that it is of local importance far wider than relating merely to the two claimants in this particular case. There are no particular complexities as far as issues are concerned. I am sure that it is best if this case is to be dealt with expeditiously, but nonetheless it is important, out of fairness, that any evidence that is given is seen properly to be independent.

46. Mr Hyam on behalf of the claimant puts it this way: can there really be a fair trial if there is not an appearance of independence as far as the defendant expert is concerned, especially when the odour and the expert's evidence is so material to the actual case?

47. I have come to the conclusion, not without some hesitation but I have come to the firm conclusion, that in this particular case the overriding objective, as expressed in the CPR, is that in order for this case to be dealt with justly Mr Branchflower does not give evidence in this case and therefore I rule that his evidence is inadmissible for the reasons that I have just given.