Expert Witness Journal Issue 65 February 2026 - Flipbook - Page 73
Expert witnesses: what’s the price
of a change of mind?
by Tony Bingham, Arbitrator, 3 Paper Buildings, Temple
When an expert witness changed his mind under
cross-examination, should that have impacted the
costs award?
You might guess the expert’s concession was enough
for the borough council to withdraw its intention
to give planning approval – and, yes, it did. The
next spoiler is that the HSE was awarded all its legal
costs by the High Court judge – but then the threejudge Court of Appeal took them away. Spoilsports,
perhaps.
MJ Gleeson submitted a planning application for
139 dwellings at Runcorn – or rather, in the vicinity
of Runcorn Chemicals Complex. The Health &
Safety Executive (HSE) was a tad sni昀昀y and advised
against it on health grounds. No matter, said the
local council’s planning department, adding it
had extensive experience and history with the
chemicals industry and “had a robust approach to
taking risks posed by such developments”. On top
of that, the council took advice from a specialist
risk management consultant 昀椀rm with extensive
experience as expert witness.
Let’s go through the topic of who pays legal costs;
more particularly, ask who pays the costs in planning
inquiries. The ordinary position in planning is much
the same as in construction adjudication. Each side,
win or lose, pays its own costs. If, however, a dispute
comes to the High Court as a construction dispute,
then the rule is that “costs follow the event”. This
usually means the net winner gets its costs paid by
the losing party. But the overarching right of the
judge or arbitrator is to apply discretion. In other
words, the tribunal can depart from “costs follow
the event” if the tribunal sees merit in giving some
relief to the losing party for some reason or other.
Fair enough, methinks. Not so the HSE. It coaxed
the secretary of state for housing to call in the
planning permission. And so the stage was set for
an all-singing, all-dancing piece of litigation with
solicitors and barristers and expert witnesses.
The case is called: the King (on the application of
Halton Borough Council) vs the Secretary of State
for Levelling-up, Housing, Communities & Local
Government.
In the Halton planning case, the 昀椀rst judge, sitting
alone, decided that the volte face of the expert, being
a complete change of mind, caused the council to
quit and concede defeat. So he awarded the HSE
its legal costs. He parted company with the usual
planning approach of each side paying its own costs.
Now, here is a spoiler in more than one sense.
During the High Court hearing, the very
experienced expert appointed by the council and
hitherto wholly in support of granting planning
permission completely changed his mind! When the
HSE’s barrister cross-examined him on day three
of the inquiry, the expert agreed that if he were in
a planning inspector’s position, he would have to
advise the secretary of state strongly against the
grant of planning permission. I bet the council’s
barrister let out a noise, from somewhere deep
down, that echoed across the court. That’s a spoiler
and a half.
EXPERT WITNESS JOURNAL
Ah, but the Court of Appeal took a di昀昀erent
approach. First the court explained that in planning
proceedings the parties normally meet their own
expenses. That’s because all parties are expected
to behave reasonably to support an e昀케cient and
timely process and to encourage local planning
authorities to property exercise their development
responsibilities so as to stand up to scrutiny. The
Court of Appeal began a search for unreasonable
behaviour, which, if found, would lead to costs being
awarded against the party judged to have been
unreasonable.
71
FEBRUARY 2026
