This case concerns an unsuccessful claim for over £37 million in damages against the Secretary of State for Education. It also serves as a reminder of the professional obligations of expert witnesses, and how important it is to choose someone who is familiar with these duties and professional standards.
Background
Mr Peter Marples, his wife, son and nephew, together the ‘Claimants‘, brought a claim against the Secretary of State for Education (the ‘Defendant‘).
In December 2016 a provider of apprenticeship services, known as Aspire Achieve Advance Ltd (‘3AAA‘), was under contract to provide such services to the Skills Funding Agency (the ‘SFA‘), a body for which the Defendant was responsible. 3AAA wanted the SFA’s approval for a change of control to a private equity provider, who were interested in buying 3AAA. When the SFA declined to provide this, the proposed private equity purchaser withdrew their offer.
Familiarity breeds contempt.”
Aesop
This led to the Claimants alleging that the SFA had wrongfully blocked the sale of 3AAA to the private equity firm. They claimed that this had prevented them from selling the business for £27 million, plus a lost chance of converting approximately £10 million in rollover loan notes.
Preparing the reports
In preparation for trial, both parties instructed experts to provide relevant evidence on the accounts. The Claimants’ expert was Mr Cohen, a forensic accountant, and he began preparation of his expert report.
Mr Marples was also an accountant by trade, and it later became clear that he had been in regular contact with Mr Cohen whilst he prepared his report. The Claimants’ solicitors were not aware of this contact between these parties. Once the extent of Mr Marples’ involvement in the preparation of the report became clear, the Defendants applied to the court to revoke the Claimants’ permission to rely upon their expert’s evidence.
Providing expert evidence
After examining the correspondence and involvement between Mr Marples and Mr Cohen, the judge held that the report produced was not independent. It was the result of a “joint exercise with Mr Cohen happy to defer to Mr Marples as the client, with “regular and free flowing contact.” It was effectively “advocacy on behalf of the Claimants” and became what Mr Marples wanted it to say, not Mr Cohen’s opinion at all.
Further, it was clear to the judge that both parties knew that this was directly contrary to Civil Procedure Rules (“CPR”), namely CPR 35 which details the rules surrounding the preparation of expert evidence. However, the pair continued to collude in this manner.
The CPR provides that the expert’s duty is to the court on matters within their expertise and this duty overrides any obligations to the persons who pay or instruct them. The judge determined that this was a “deliberate and cynical breach” of the rules relating to the preparation of expert evidence.
The judge concluded his criticism by stating that he had “no confidence” in Mr Cohen’s ability to act in accordance with his obligations as an expert witness. Notably, this was not the first court case where Mr Cohen’s evidence had been criticised for presenting the case of the party instructing him “in the most favourable light”.
The Claimants were denied permission to rely upon their expert’s evidence.
Outcome
The court dismissed all of the Claimants’ claims for misfeasance in public office and negligence. It was held that the SFA did not owe a duty of care to the Claimants when taking the decision to approve the change of control. Further, the Claimants could not prove any loss, as the value of the 3AAA remained the same before and after this decision.
Other cases
The recent cases of Dana UK Axle Ltd v Freudenberg FST GmbH [2021] and Andrews & Ors v Kronospan Ltd [2022] EWHC 479 (QB) demonstrate that the court will critically assess expert evidence where it has materially changed from their initial findings. This again shows that the court’s focus will be on ensuring that the experts have maintained their obligations to the court, not their clients.
Conclusion
Any evidence provided by an expert must be their own objective and unbiased opinion. It must never be advocacy on behalf of the client who has engaged them for their services, effectively saying what the client wants them to say.
Solicitors should take steps to monitor correspondence between the client and the expert, especially where the client is also an expert in that particular field, ideally being copied into all correspondence between these parties. Clients should resist having too much involvement in the material prepared by the expert witness, if they want to avoid the risk of the report becoming unusable by not being able to rely upon it.
This case once again demonstrates the value of using expert witnesses who are highly experienced, aware of their obligations and known for delivering valuable, reliable evidence to the court.
Link: Peter Marples & Ors v Secretary of State for Education [2025] EWHC 2794 (Ch) (28 October 2025)
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