What Expert Witnesses can learn from judgements….

Posted on 25/11/2019 · Posted in Adjudication, Arbitration, Expert Witness, Financial Litigation, Mediation

Judges have often made comments in their judgements about the role and capabilities of expert witnesses. We have compiled a number of those judgements which give us lessons and provide guidance as to what is expected to those working in this field. There follows a series of cases over years since 2000 where judges have made comments about experts who have appeared in front of them. The original basis of an expert’s appointment was set out by Cresswell J in the case referred to as the Ikarian Reefer in 1993. Much has been written about the Ikarian Reefer judgement and it was repeated in the first case we have illustrated here. The cases below are not a conclusive set but do give some very strong pointers as to what is expected. Acting as an expert is an important role and one that should provide the court with the specialist and impartial input to be able to decide a case. It is not for experts to be advocates or make decisions that are the preserve of the court but to maintain a independent professional advisory role at all times. This is paramount. For a directory of cases please click here. Please read on………

Anglo Group plc, Winther Brown & Co Ltd v. Winter Brown & Co Ltd, BML (Office Computers) Ltd, Anglo Group plc, BML (Office Computers) Ltd [2000] EWHC Technology 127 (8th March, 2000)

In front of: His Honour Judge Toulmin CMG Q.C.


105. The Woolf reforms, building largely on the approach which was developed in this Court and the Commercial Court (with the support and encouragement of the users of these Courts) sees no inherent conflict between dispute resolution by parties in the course of the procedure and dispute resolution by the court at a full hearing at the end of the procedure. Dispute resolution in the course of the procedure may be achieved with assistance outside the court procedure by way of independent mediation; but it may also be achieved by techniques of case management pioneered in this court, e.g. by “without prejudice” meetings of experts, joint statements of experts setting out the matters on which they agree or disagree, early neutral evaluation or by the appointment of a single jointly appointed expert who may effectively resolve the technical issue or issues which are preventing the parties from settling their disputes; or by a combination of constructive case management and mediation. Many of these innovations underline the importance of experts retained by the parties acting at all stages as independent experts in order to assist the parties in reaching a resolution of their disputes or in narrowing the issues in dispute thus saving time and costs at trial.

106. The starting point in considering the duties of experts is the well known observation of Tomlin J. in Graigola Merthyr Co Ltd v. Swansea Corporation [1928] 1 Ch 31 at,38 that:
long cases produce evils … In every case of this kind there are generally many “irreducible and stubborn facts” upon which agreement between experts should be possible and in my judgment the expert advisers of the parties, whether legal or scientific, are under a special duty to the court in the preparation of such a case to limit in every possible way the contentious matters of fact to be dealt with at the hearing. That is a duty which exists notwithstanding that it may not always be easy to discharge.

107. He went on to say that in these classes of case those concerned with the preparation of cases should more closely address their minds to restricting the areas of dispute.

108. In the case of the The Ikarian Reefer [1993] 2 Lloyds Rep 68, at 81-82 Cresswell J analysed the role of the expert witness. The analysis, needs to be extended in accordance with the Woolf reforms of civil procedure.

109. 1. An expert witness should at all stages in the procedure, on the basis of the evidence as he understands it, provide independent assistance to the court and the parties by way of objective unbiased opinion in relation to matters within his expertise. This applies as much to the initial meetings of experts as to evidence at trial. An expert witness should never assume the role of an advocate.

2. The expert’s evidence should normally be confined to technical matters on which the court will be assisted by receiving an explanation, or to evidence of common professional practice. The expert witness should not give evidence or opinions as to what the expert himself would have done in similar circumstances or otherwise seek to usurp the role of the judge.

3. He should co-operate with the expert of the other party or parties in attempting to narrow the technical issues in dispute at the earliest possible stage of the procedure and to eliminate or place in context any peripheral issues. He should co-operate with the other expert(s) in attending without prejudice meetings as necessary and in seeking to find areas of agreement and to define precisely arrears of disagreement to be set out in the joint statement of experts ordered by the court.

The expert evidence presented to the court should be, and be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of the litigation.”
Cresswell J

4. The expert evidence presented to the court should be, and be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of the litigation.

5. An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.

6. An expert witness should make it clear when a particular question or issue falls outside his expertise.

7. Where an expert is of the opinion that his conclusions are based on inadequate factual information he should say so explicitly.

8. An expert should be ready to reconsider his opinion, and if appropriate, to change his mind when he has received new information or has considered the opinion of the other expert . He should do so at the earliest opportunity.

110. It is clear from the Judgment of Lord Woolf MR in Stevens v Gullis (Court of Appeal Transcript of 27 July 1999) that the new Civil Procedure Rules underline the existing duty which an expert owes to the Court as well as to the party which he represents.

111. The formulation set out above is also consistent with the judgment of Laddie J in Cala Homes (South) Ltd v. Alfred McAlpine Homes East Ltd [1995] FSR 818 at 841 where Laddie J criticised a not dissimilar approach by an expert to that of FMC in this case. It is also consistent with the judgment of Pumfrey J in Cantor Fitzgerald v Tradition UK Ltd Judgment Transcript of 15 April 1999 paragraph 70 where he emphasised the particular importance of experts being scrupulously independent in highly technical cases like computer cases.

112. It needs to be recognised that a failure to take such an independent approach is not in the interest of the clients who retain the expert, since an expert taking a partisan approach, resulting in a failure to resolve before trial or at trial issues on which experts should agree, inflates the costs of resolving the dispute and may prevent the parties from resolving their disputes long before trial.

113. The fact that most experts, as a matter of course, adhere to the standards which I have set out, contributes substantially to the fact that over 90% of the actions in this court settle (excluding those referred to mediation), in many cases at a very early stage in the procedure.

For the directory please click here.

Barings Plc and ANR v. Coopers & Lybrand and Ors [2001] EWHC Ch 17 (9th February, 2001)

In front of: The Honourable Mr Justice Evans-Lombe

It was emphasised that an expert witness needed to remain within the limits of recognised expertise. In this case it was looking at the evidence given by Sir John Craven concerning alleged negligence by the Barings directors in the management of the bank.

The court stated:

45.… expert evidence is admissible under section 3 of the Civil Evidence Act 1972 in any case where the Court accepts that there exists a recognised expertise governed by recognised standards and rules of conduct capable of influencing the Court’s decision on any of the issues which it has to decide and the witness to be called satisfies the Court that he has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of those issues. Evidence meeting this test can still be excluded by the Court if the Court takes the view that calling it will not be helpful to the Court in resolving any issue in the case justly. Such evidence will not be helpful where the issue to be decided is one of law or is otherwise one on which the Court is able to come to a fully informed decision without hearing such evidence.

Court Scenes from Major Trials drawn by Priscilla Coleman

McCartney v Mills-McCartney

McCartney v Mills-McCartney

For the directory please click here.

Colt Telecom Group plc in the matter of the Insolvency Act 1986 (Reissued: 15th January, 2003)

In front of: The Honorable Mr Justice Jacob

A case where the expert from KPMG did not follow CPR35, had a conflict of interest, did not assess solvency correctly, relied on the unattributed work of others outside his expertise and then did not amend his views when other material became available.

80. “……….. Mr Heis ought (as he did not) to have considered very carefully, specifically for the purposes of this case, not only Part 35 of the Practice Direction, but also the Code of Guidance on Expert Evidence of the Working Party of the Civil Justice Council. He said he had a general knowledge of the duty of experts. That is not good enough. Any expert in a case that is likely to be contested ought to re-read the Rules and Code. In this case Mr Heis was not helped by his instructing solicitors, who failed to send him a copy of Part 35 or the Practice Direction or the Code of Guidance. ……” “I regret to say that I conclude, without hesitation however, that Mr Heis failed in his duties to the court. Unconsciously I think he espoused his clients’ cause. Moreover I think he was prepared to act for Highberry when there was a clear conflict between his firm and that of a client, namely Colt. Of course I do not say these things lightly and must give detailed reasons. Some of these emerge in my detailed consideration of the allegations of insolvency. But some matters stand out particularly so I set these out now:

(1) Mr Heis and his firm were prepared to act for Highberry even though his firm had acted for Colt recently. A key question in these proceedings is Colt’s WACC (current weighted average cost of capital). KPMG had recently given tax advice concerning transfer pricing. That advice involved the WACC for an important Colt asset, namely its long distance network. Mr Heis did not, I will allow, know that when he wrote his initial rule 2.2 report. But that is because neither he nor anyone at KPMG concerned with possible conflict of interest made any specific inquiries as to what was involved in the tax advice. Evidence from Mr Akin of the company was given on this point. It was to the effect that the WACC, on KPMG’s advice, was 8.5%, – to be contrasted with Mr Heis’s figure of 24.67% for the assets as a whole. Mr Heis sought to brush that aside on the basis that he did not have access to the advice given by KPMG.

He said “I would not expect the WACC calculations for the purpose of agreeing tax computations with the Inland Revenue and tax authorities in other countries to be equivalent to FRS11 [Impairment of Fixed Assets and Goodwill] calculations.” He does not set out how those calculations would be done. He added, , that “Mr Akins’ report makes it clear that they are not equivalent.” I do not think it does. That is the wrong question in any event: the real question is whether KPMG’s tax advice concerning WACC is relevant to these proceedings. It could be relevant either as an exact equivalent or as a comparable (if there were differences between WACC for FRS11, and WACC for tax purposes – a matter which remains unresolved). Mr Heis should not have been entering any such dispute as a partner in KPMG – they were potentially speaking with forked tongues.

(2) Mr Heis’ firm stood to make a lot of money if his expert evidence was accepted. Yet he did not bring this out in his Rule 2.2. report. All that contained was the routine statement that he and another partner were prepared to act as administrators. This is not a case where the expert had an indirect or subordinate interest in the result. Or a case where KPMG was merely carrying out a detailed investigation of facts. On the contrary KPMG had a very great direct interest in the court accepting Mr Heis’s expert opinion as to insolvency. He should never have offered to be the administrator. It astonishes me that the possibility of a problem in this regard never crossed Mr Heis’s mind (or that of anyone else at KPMG) until Mr Heis was asked about it. Only then did he offer to stand down.

(3) The key area in relation to balance sheet solvency relates to the valuation of the company’s assets. FRS 11 relates to this. It applies when “fixed assets need to reviewed for impairment when there is some indication that impairment has occurred.” In other words when there is reason for looking again at an earlier valuation of fixed assets, a revaluation job should be done. No one suggests that the job is easy. It is not to be done on a forced sale basis – the general idea is to value the assets on a going concern basis. FRS 11 impairment reviews are carried out by specialist accountants. They involve a considerable degree of judgment and experience. It is common ground that a small difference in initial assumptions can make a great difference to the result (a point not mentioned in Mr Heis’s initial evidence as it should have been).

Now Mr Heis was an insolvency practitioner. So far as the value of fixed assets are concerned insolvency practitioners normally turn to expert valuers in the relevant field. If the asset is a factory then they go to a factory valuer and so on. But in this case Mr Heis set himself up as the relevant expert valuer. It turned out that he had no expertise in FRS 11. He was essentially giving evidence second-hand.”

92. “Although PwC had access to much later, detailed and inherently better information than Mr Heis, and although it was conducted by experts experienced in FRS 11, Mr Heis did not, in the face of this review, withdraw his allegation of balance sheet insolvency. ………..”

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Wessanen Foods Ltd v Jofson Ltd [2006] EWHC 1325 (TCC) (08 June 2006)

In front of: His Honour Judge Peter Coulson QC

The case concerns a fork lift truck that caught fire and the reasons for it. The parties appointed both fire and engineering experts.

218.In my judgment, whilst it was appropriate for the parties to plan for a trial that involved both fire experts and expert mechanical engineers, it ought to have been apparent to the parties before the trial that, in truth, there were no real ‘fire’ issues between the experts (and, as it happens in this case, precious few mechanical engineering points as well). I consider that it was not necessary for the court to hear four different experts on what were, in truth, relatively straightforward matters. I accept that fire experts were necessary at the outset of the action and that it was necessary for those fire experts to meet, to discuss their respective findings, and to see what they could agree. However, once they had agreed the cause of the fire from a technical perspective, I consider that their role was really over and that the parties could have managed with just one expert each.

……. such evidence is not necessary.”
His Honour Judge Peter Coulson QC

219. Thus, I would like to see parties in cases such as these take a long hard look at the statement agreed by the fire experts pursuant to CPR 35.12, to see whether, in view of the agreements reached, it is necessary or appropriate to adduce oral evidence from fire experts at the trial. There will be cases where such evidence is vital to the proper disposition of the issues by the court. But there will be many others where, because of the wide range of agreements reached, such evidence is not necessary. I believe that this was one of those cases.

222. The risk is that, if one set of experts carries out tests unilaterally, the tests have to be repeated at a later date with the other side’s experts in attendance. This leads to unnecessary work and additional cost. It also means that there can be endless debate about the circumstances in which the first, unilateral, set of tests was carried out. In the present case, I am in no doubt that the first series of tests carried out by the Defendant’s experts should have been carried out in the presence of all the experts. I think that would have clarified the issues earlier and would again have saved time at the trial.

For the directory please click here.

BSkyb Ltd & Anor v HP Enterprise Services UK Ltd & Anor (Rev 1) [2010] EWHC 86 (TCC) (26 January 2010)

In front of: The Honourable Mr Justice Ramsey

Mr Joe Galloway was a witness for the Defendant but his evidence was found to be unreliable and Mr Justice Ramsey said:

174.In his first witness statement at paragraph 8, Joe Galloway stated that “I hold an MBA from Concordia College, St. Johns (1995 to 1996)”. Whilst it is, superficially, correct that Concordia College had granted him an MBA, as set out below it was not a genuine degree and was not obtained by study in 1995 to 1996. However, on being asked questions about that degree Joe Galloway gave evidence to the court over a prolonged period which EDS fully accept, as they have to, was completely false. This led to the termination of his employment by EDSC and to EDS having to accept that their main witness had lied in giving his evidence. He was also the person who, as Managing Director of the relevant part of EDS, directed and was fully involved in EDS’ Response to the ITT and in the various matters which are alleged by Sky
to give rise to the misrepresentations in this case.

Joe Galloway’s credibility was completely destroyed by his perjured evidence over a prolonged period.”
The Honourable Mr Justice Ramsey

195. In my judgment, Joe Galloway’s credibility was completely destroyed by his perjured evidence over a prolonged period. It is simply not possible to distinguish between evidence which he gave on this aspect and on other aspects of the case. My general approach to his evidence has therefore to be that I cannot rely on the truth of his evidence unless it is supported by other evidence or there is some other reason to accept it, such as it being inherently liable to be true.

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Charnock & Ors v Rowan & Ors [2012] EWCA Civ 2 (20 January 2012)

In front of: Lord Justice Gross, Mr Justice Mann and Sir Stephen Sedley

2.The agreement was, however, subject to a contest on liability. The second defendants, who were the first defendant’s insurers, were understandably highly suspicious of these claims. Their suspicion was initially founded on the sheer unlikelihood of so many passengers having suffered remarkably similar trauma from a very minor jolt. By the date of trial, before Judge Gore QC in the Liverpool County Court from 28 June to 1 July 2010, this suspicion had the backing of an engineering expert, Mr Parkin, whose report concluded that to reach the conventionally accepted threshold for collision trauma known as Delta V, representing here an enforced movement of 3 m.p.h., the car would have had to be travelling at 30 m.p.h. or more. Since the damage to the vehicles was inconsistent with a collision speed of more than 15 m.p.h., Mr Parkin’s expert opinion was that there could not have been enough force in the collision to cause any injury, let alone to injure 14 passengers.

3. If this evidence had been accepted, it would have been an end of the case. The injuries would necessarily have been fabricated. But, for reasons which are not challenged in this court, the judge found that the totality of expert opinion allowed the possibility of injury at lower speeds, and that there was in reality no scientific threshold below which injury could not occur. This was in part because the physiological mechanism of injuries such as those the court was concerned with was itself not scientifically known. In short, the judge found it not impossible that this minor collision could have caused whiplash injuries to passengers on the bus.

26. For the reasons I have given I would dismiss this appeal.”

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CtL and CmL (Children) (Welfare Hearing: Expert Report), Re [2013] EWHC 2134 (Fam) (21 June 2013)

In front of: Mrs Justice Pauffley

A case where the court and the expert witness did not agree.

16. “Dr Blows’ contribution has had a very considerable impact upon this process, as would be expected given his expertise and the extent to which it had been thought he would have been able to assist in decision making. Judges and practitioners from whichever discipline, legal or social work, repose trust in experts, be they psychiatrists or psychologists, to provide helpful analysis in relation to the key questions asked and make recommendations upon welfare issues in line with mainstream thinking. Indeed many experts nowadays will include a few short sentences within the body or at the end of their reports indicating, one way or the other, whether their opinions and advice would be viewed by others within their specialty as conventional.

28. Dr Blows answered a series of my questions so as to establish whether he is aware of the ways in which the family justice system is undergoing a major process of reform. I asked whether he knew about the views which have been expressed by the President about the ways in which experts have been and, in future, are to be utilised. I inquired as to whether he knew about the major change of culture, supported as it is by Practice Direction, requiring experts to produce shorter reports, focussed on analysis and opinion rather than history and narrative.

29. In answer to all of my questions, Dr Blows said he was aware of and up to date with these developments. The source of his knowledge lay in the professional networks to which he belonged, online.

30. I pause to reflect upon the material which was supplied to Dr Blows at the time of his instruction. It should have been obvious that the document which required more attention than any other was the judgment given on 1st March. Within that document, there are not only findings of considerable importance when planning for the children’s future (the insidious harm from which they must be protected) there are also many paragraphs which dealt with the reasons why it would not have been appropriate to embark upon any exercise of re-assessing the mother’s ability to meet the children’s emotional needs and protect them from the risk of sexual harm.

31. It is not evident from the content of Dr Blows’ report nor from his oral evidence that the judgment provided him with any kind of starting point. There is scant reference to it – mere recitals that neither the mother nor the father agreed with the findings as against them. My sense was that Dr Blows had no real understanding of the status to be accorded to the judgment itself, particularly as it had dealt with ‘welfare checklist’ factors.

His report contained an abundance of tedious, even mind numbing, detail.”
Mrs Justice Pauffley

32. His report contained an abundance of tedious, even mind numbing, detail about the events at the contact visits he attended as well as senseless questions (for present purposes) of the parents themselves. To cite just three examples, it was not necessary to ask the father whether he had asked his parents about the reason for their separation. Nor was there a need to deal, as Dr Blows did in his discussion with the mother (2 hours over the telephone) with the physical circumstances surrounding the birth of the two children or what her own mother did when she was naughty as a child. There is a mass of material stemming from Dr Blows investigative work which, to my mind, was completely unnecessary.

33. His focus should have been on advising the court about the children’s placement needs. He should have discussed the shortcomings, well known to practitioners of all kinds, of long term fostering for children of these ages. He ought to have considered and discussed the relative advantages of adoption. There is not one word, anywhere in his report, about the children’s need for stability, security and for the assurance that those who will be looking after them for the remainder of their minority are fully committed to them. Nor is there any elaboration of the various obvious disadvantages for the children of continuing to be “looked after children” for the next 11 and 14 years respectively, as would be the case if they were to live with foster parents. Nor does Dr Blows confront the obvious and very disadvantageous emotional consequences for the children of the potential for further disrupted placements.

34. Maybe Dr Blows discounted the need for any analysis of those matters because he considered them obvious, but his oral evidence did not support that possibility. Perhaps he became so affected by his sympathy for the mother that he felt unable to recommend adoption for the children. Certainly, the opening remarks in that part of his report which deals with “any other matters” mentions the mother’s distress as a relevant consideration – “I think the current situation and inevitable reduction in frequency of contact, will be most distressing for AP.”

35. Dr Blows’ recommendations as to contact deserve mention as well. In summary, he suggested that, if in long term foster care, the children should have two monthly contact with each parent and that a reasonable frequency for children of these ages is every six to eight weeks. His report makes clear he had “canvassed informally from other colleagues working with looked after children … and this frequency is cited as the most reasonable to balance out and mitigate difficulties.” One of the more remarkable of Dr Blows’ recommendations was that after the first year, the parents’ contact might become unsupervised, after a review by the local authority.

I could scarcely believe what I was reading.”
Mrs Justice Pauffley

36. I could scarcely believe what I was reading. Against the background of the findings made within the 1st March judgment, the overwhelming need to provide the children with a permanent family and the mother’s obvious, though understandable, limitations in being able to lend her full support to the children being cared for other than by her – Dr Blows’ proposal for the removal of contact supervision was quite ludicrous.

37. Whatever the reasons for the obvious deficiencies in his report, I am driven to conclude that they are just that – significant shortcomings – but also that his recommendations, all things considered, are wholly unsustainable.

38. With the benefit of hindsight, I regret the decision to involve a child and adolescent psychiatrist. After the February hearing, I was faced with a consensus that it was appropriate and entirely necessary to instruct such an expert. In the light of what has happened since, I wish I had done one of two things. Either I should have suggested to the local authority that the evidence required could have come from a combination of the allocated social worker and a manager within the family finding team; or Amanda Gillard, the independent social worker who has already provided truly excellent assessment reports in these proceedings should have been approached again. Upon reflection, I do not consider a psychiatrist / psychologist was needed; and I shall be on my guard in future to avoid involving such an expert.”

For the directory please click here.

Mengiste & Anor v Endowment Fund for the Rehabilitation of Tigray & Ors [2013] EWCA Civ 1003 (14 August 2013)

In front of: Lady Justice Arden, Lord Justice Patten and Lord Justice McFarlane

Experts must be aware of their duties and responsibilities.

14. Experts’ reports are required to comply with procedural rules contained in the Civil Procedure Rules and Practice Directions and Protocols issued as part of those Rules or Practice Directions. Their overriding duty is to help the court. The procedural requirements prescribe, for example, that an expert’s reports should make it clear whether the facts stated are within the expert’s own knowledge. If they are in dispute, the expert should give an opinion on each version of the facts. In litigation, experts are often instructed by solicitors who will seek to ensure that reports comply with all procedural requirements.

15.Under CPR 35.10(2), the report of an expert must state that he understands his duty to the court and has complied with it. The reports of Mr Jones contained this declaration.

16. It is common ground that the expert reports of Mr Jones which the claimants had filed did not comply with CPR 35.

The expert gave his evidence poorly.”
Lady Justice Arden, Lord Justice Patten and Lord Justice McFarlane

17. The expert gave his evidence poorly. The judge in the course of Mr Jones’ cross-examination asked Mr Jones if he understood his duties to the court and whether he appreciated that he might be vulnerable to a wasted costs order. Mr Jones replied that he was aware of his duties but did not appreciate that he was liable to a wasted costs order.

18. The judge concluded that Mr Jones’ evidence did not comply with the rules and that Mr Jones did not understand his duties as an expert to the court.

19. The judge went further. In his judgment, the judge made clear and outspoken criticisms of the appellant solicitors for the poor quality of Mr Jones’ evidence. He further held:
“These duties and his potential exposure if his evidence was given recklessly or negligently was not explained to him by the Claimants’ lawyers when he signed his experts report (contrary to the Expert Witness Protocol). This latter point I found particularly concerning. In effect Mr Jones was thrown to the wolves without any proper protection or advice as to the nature of his role and his duties and his potential liabilities.” (stay judgment, paragraph 32(3))”

For the directory please click here.

Megantic Services Ltd v Revenue & Customs [2013] UKFTT 492 (TC) (13 September 2013)

In front of: Judge John Walters QC and Judge Roger Berner

This tax tribunal case showed that although CPR35 did not apply to tribunals so the same principles did apply.

39. “This, we consider, is the extent of the role that CPR 35 can play in tribunal proceedings. There is no such rule in the tribunal’s rules. Nonetheless, the principles that underlie CPR 35 are relevant to consideration by the tribunal of the quality, and thus probative value, of the evidence. It is therefore likely to assist the tribunal if an expert giving evidence complies with CPR 35 and states that he has done so (see Chandanmal, per Judge Mosedale at [12] and [13]). But a failure to do so will not, unless the tribunal considers that such evidence will only be acceptable in particular circumstances if full compliance is demonstrated, necessarily result in the evidence being excluded; such failure will instead raise questions of weight.

Mr Fletcher paid “lip service” only to the provisions of CPR 35.”
Judge John Walters QC and Judge Roger Berner

Mr Fletcher paid “lip service” only to the provisions of CPR 35

40. In view of our conclusion on that matter, it would not be appropriate for us to consider at this stage the criticisms levelled by Mr Patchett-Joyce as to the extent to which, as he put it, Mr Fletcher paid “lip service” only to the provisions of CPR 35, nor the deficiencies which Mr Patchett-Joyce sought to identify in the evidence by reference to the summary of the duties and responsibilities of expert witnesses given by Cresswell J in The Ikarian Reefer, to which we have referred. As those are matters on which Mr Fletcher will be subject to cross-examination when giving evidence at the substantive hearing, it will be for the tribunal at that stage to consider what weight, if any, it attaches to Mr Fletcher’s evidence.”

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AB, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 3453 (Admin) (07 November 2013)

In front of: Mr Justice Mostyn

Experts report needs to be updated if additional evidence provided. Evidence also needs to be properly examined by the expert.

46. In his first witness statement the claimant stated that two sets of photographs of the injuries to his back were taken, the first on 2 November 2010 and the second on 5 November 2010. The first set was numbered A1 to A10, and the second set B1 to B5. The claimant’s solicitor has made a witness statement in which she explained that she received the first set by e-mail (not the claimant’s e-mail address) on 19 November 2010 and the second set by e-mail from the claimant’s e-mail address on 20 November 2011 (sic, but I have no doubt that she meant 2010).

47. The photographs showed many unpleasant and no doubt painful wounds on the claimant’s back. In all there appear to be 16 separate wounds or abrasions.

48. At first glance the first set of photographs do all appear to be taken on the same occasion in the same place but on careful examination this is shown not to be so. Photographs A1 and A3 clearly shows the claimant wearing an earring in his left ear, and in the latter there is visible resting on his back the hand of a third party the nail polish of which is pink. The lady’s hand with pink nail polish is also visible in photographs A1 and A2.

49. But in photographs A8, A9 and A10 the earring has gone. And in photographs A5, A7 and A9 the lady with him has brown nail polish.

50. Plainly the first set of photographs was not taken on the same occasion. I was given no explanation for this important discrepancy in the claimant’s evidence.

51. Given that these were digital photographs I asked that the embedded dates should be established. Research has revealed that the date for each of the photographs, both the A and B sequences, is 27 May 2009 which suggests that the date function on the camera was not working. So nothing turns on that.

52. In support of his claim the claimant produced a report from Mr Andrew Mason, a specialist in accident and emergency medicine. During his clinical career Mr Mason specialised in A and E work but for some years now he has not practised clinically but has devoted himself to medico-legal work writing reports often in asylum cases for claimants. In paragraph 2 of his report he explained that he had been provided with 15 digital photographs, which he lists as A1 – 10 and B1 – 5. Yet in paragraph 11 of his report he refers to “the five photographs provided to me”. When asked by me to explain this strange discrepancy he explained that the reference to five photographs derived from an earlier draft of his report when he had only five photographs available to him. He was not able to tell me which were the five available photographs when he first drafted his report, and by reference to which he had reached his conclusions, which he did not alter. In paragraph 11 he stated his conclusions as follows:
“it is my opinion that the appearance of the claimant’s back as illustrated in the five photographs provided to me is diagnostic of burns deliberately inflicted by being beaten with a hot object of a type such as described by the claimant. The burns are recent and the photographs in my opinion would have been taken within 2 to 3 days of the injuries being inflicted. The burns are fresh and have not healed or had time to form scars”

53. In his oral evidence Mr Mason accepted in answer to questions from me that he could not possibly “diagnose” a beating with a hot object from these photographs. Rather, the furthest he properly could go would be to say that the photographs “don’t tell us any more than that they are burns with a hard hot object”. It was also pointed out to him that according to the claimant the first set of photographs was taken on 2 November 2010, i.e. at least four days after the injuries were caused, and the second set on 5 November 2010 i.e. at least a week after the injuries were caused. He was asked whether this chronology caused him to revise his opinion that the photographs showed fresh burns caused 2 to 3 days earlier. He stated that he did not revise his opinion. I was surprised by this.

I have not been assisted by the expert medical evidence

I have not been assisted by the expert medical evidence”
Mr Justice Mostyn

67. I have not been assisted by the expert medical evidence adduced on behalf of the claimant which I find to be both parti pris and sloppy, for the reasons I have already indicated. Experts should be very careful not to go beyond the remit of their expertise. If they do it is inevitable that they are regarded as little better than mercenaries on behalf of their clients. In my opinion experts would be well advised to keep in mind the vivid metaphor of Thorpe LJ in Vernon v Bosley (Expert Evidence) [1998] 1 FLR 297 at 302C:
“‘The area of expertise in any case may be likened to a broad street with the plaintiff walking on one pavement and the defendant walking on the opposite one. Somehow the expert must be ever-mindful of the need to walk straight down the middle of the road and to resist the temptation to join the party from whom his instructions come on the pavement.”

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Dubai Islamic Bank PJSC v PSI Energy Holding Company BSC & Anor [2013] EWHC 3781 (Comm) (06 December 2013)

In front of: The Honourable Mr Justice Flaux

A case where the court decided the expert evidence was inadmissible.

1. “The claimant (to which I will refer as “the Bank”) provides banking and financial services in accordance with Islamic law, including short term trade finance or receivables financing. The Bank’s claim against the second to fourth defendants is a claim in debt for some US$432 million (after giving credit for recoveries) arising under a Restructuring Agreement (“the RSA”) dated 19 August 2007, which was entered into after the Bank discovered it had been a victim of a long standing fraud.

2. In broad terms the Bank’s case is that events of default occurred under the RSA which led to the acceleration by the Bank of repayment of sums due, with the result that the second to fourth defendants, who were all Guarantors under the RSA, are jointly and severally liable to the Bank for the outstanding amount due under the RSA. The fifth defendant is one of the companies through which the fraud was perpetrated and the principal counterparty to the RSA and judgment in default was obtained against it on 12 January 2011. The first defendant (“PSI”) is a Bahraini company beneficially owned by the second defendant. The Bank claims that it is entitled to trace monies applied in breach of fiduciary duty into shares in Afren plc (“the Afren shares”), owned by PSI and asserts a proprietary interest in those shares.

Various defences raised had been abandoned”
The Honourable Mr Justice Flaux

9. By the conclusion of the trial, the matters in dispute had narrowed somewhat. Various defences raised had been abandoned along the way, including an argument that the RSA was void or unenforceable as having been entered by the Bank ultra vires. Furthermore, by a judgment given during the trial on 23 October 2013, I ruled that the defence that the debt had been extinguished as a matter of UAE/Dubai law because of steps taken by the Bank to enforce against the principal security under the RSA had no real prospect of success, as all questions of recoverability of the debt were governed by English law, the governing law of the RSA. Accordingly I held that expert evidence of UAE/Dubai law was inadmissible.”

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H v R [2014] EWCA Crim 1555 (22 July 2014)

In front of: The President of the Queen’s Bench Division (Sir Brian Leveson), Mrs Justice Patterson DBE and Sir Richard Henriques (sitting as a Judge of the Court of Appeal)

A case where the expert continued to work despite previous criticism.

her evidence had been rightly excluded”
The President of the Queen’s Bench Division (Sir Brian Leveson), Mrs Justice Patterson DBE and Sir Richard Henriques

42. In that context, it is worth repeating that the reports of Dr Boakes have been considered by this court on two occasions (in R v Richard W and R v Bernard V supra). In both, it was concluded that her evidence had been rightly excluded (although each concerned what was said to be false memory syndrome without underlying mental health issues). In the former, Judge LJ said that much of her report amounted to “no more than common sense comment on the facts” and agreed with the judge’s assessment that it would “usurp the function of the jury in deciding the credibility of the witnesses and no more” (para 23). In the following paragraph, he set out the principles which were subsequently adopted by in R v Bernard V. In that regard, it is a matter of real concern that this is exactly the criticism that is made by the judge (and which we endorse) about the reports provided by Dr Boakes in this case, some ten years later. Miss Griffiths tells us that Dr Boakes was never informed about the views of the court in the earlier cases. We accept that explanation but Dr Boakes speaks of having received over 200 instructions since 1998: it is a matter of real concern that the impact of these decisions has never been brought to her attention.

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Garcia -v- Associated Newspapers Ltd [2014] EWHC 3137

In front of: The Honourable Mr Justice Dingemans

he qualified some of the statements that he had made in the joint statement of the experts.

he qualified some of the statements that he had made in the joint statement of the experts …… it did not assist me in determining the relevant contested issues..”
The Honourable Mr Justice Dingemans

9.The second relevant ruling related to the Defendant’s request to adduce a supplementary statement from Professor Paul Wallace MBBS, MSc, FRCGP, FFPHM (“Professor Wallace”) in which he qualified some of the statements that he had made in the joint statement of the experts. The Claimant objected to this evidence being adduced because there was a joint statement. I permitted this supplementary statement to be served because if Professor Wallace had changed his opinion on relevant matters it was necessary to know that as soon as possible, and providing a supplementary statement would provide the Claimant with a fair opportunity to consider that change of evidence before cross examination, where the change of mind would have been revealed in any event.

10. The third relevant ruling related to the Claimant’s request to ask Dr Clare Gerada MBE FRCGP FRCPsych FRCP (“Dr Gerada”), who gave expert evidence on behalf of the Claimant, questions about where and how the joint meeting of experts had taken place, and how long the meeting had lasted. This was in circumstances where Professor Wallace had withdrawn his agreement to certain matters set out in the joint statement. The Defendant objected to that, referring to the Protocol on the Instruction of Experts, which made it plain that the contents of discussions couldn’t be referred to at trial. The Claimant also pointed to the protocol which made it clear that the court could direct how the meetings could take place, for example by face to face meeting, or by telephone to reflect issues of proportionality. Some time was taken to look at Phipson on Evidence, Eighteenth Edition which referred to the protocol. I permitted the question to be asked and said I would rule on whether I considered the evidence given to be admissible, and whether it was relevant. In my judgment the evidence given was admissible evidence, if it was relevant. This is because the evidence didn’t disclose the contents of the discussion which was protected by the without prejudice privilege. However I did not consider the evidence to be relevant. The evidence showed that the meetings between experts took place by way of Skype discussions, sometimes with and sometimes without video link, but it did not assist me in determining the relevant contested issues.

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FB -v- Rana & Princes Alexandra Hospital NHS Trust [2015] EWHC 1536

In front of: Mr Justice Jay

The judge observed that the joint statement of the experts contained a number of contradictions.

Dr Ninis has allowed herself to “sign up” to a position …..… which is inconsistent with a view she expressed just two pages earlier”
Mr Justice Jay

97.It is immediately apparent that (i) Dr Ninis has allowed herself to “sign up” to a position (“does not allow us to conclude one way or another”) which is inconsistent with a view she expressed just two pages earlier in the Joint Statement, and (ii) Professor Kroll has allowed himself to articulate a somewhat unclear stance – on the one hand, he accepts the generalisation that feverish children with bacteraemia of this type may not appear particularly unwell, and on the other he appears immediately to resile from it and contend, without giving reasons, that the Bachur paper does not assist. In such circumstances, it seems to me that there is an issue which I must resolve on the basis of the oral evidence I have heard. In any event, neither party is bound by the Joint Statement: see CPR r.35.12(5).

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Iraqi Civilians v Ministry of Defence [2015] EWHC 1254 (QB)

In front of: Mr Justice Leggatt

The trial judge gave short shrift to an attempt by the claimant’s expert to resile from agreements made in the joint report.

38.On the day before the trial, however, the claimants’ solicitors gave notice that Mr Dawood “does not agree” with two paragraphs of the joint experts’ report. Those paragraphs contained statements to similar effect to the passage quoted above (although the passage quoted above was not identified as one which Mr Dawood did not agree with). It was not apparent whether Mr Dawood was saying that the joint experts’ report did not accurately represent his view at the time when he signed it or that he had since changed his mind. Nor was any explanation given at that stage of his reasons for disagreeing with the paragraphs in question. The first clue was given on the morning of the hearing when Mr Dawood produced an extract from a commentary on which he wished to rely dealing with the equivalent provision to Article 211 in the Egyptian Civil Code. The interpretation expounded by the author, Dr Sulaiman Marqis, is very different from that found in the commentaries of Sanhuri and Hakim cited by Professor Hamoudi and makes no reference to “drowning out” or any similar concept. Marqis suggests that the provision is applicable only where (1) the foreign cause made the harm inevitable in the sense of being impossible for the defendant to prevent and (2) the cause is one which the defendant had nothing to do with so that it is not attributable to him.

Mr Dawood said that he had very little time to read over the draft report…….”
Mr Justice Leggatt

39. In his oral evidence Mr Dawood explained that, after the meeting between the experts, their joint report was drafted by Professor Hamoudi. Mr Dawood said that he had very little time to read over the draft report before he had to leave for the airport to catch a flight, and that he did not notice that what was said in the draft report about Article 211 and “drowning out” did not accurately represent his view. Mr Dawood also said that, at the time of the experts’ meeting, he had no basis for disagreeing with what was said about Article 211 and “drowning out” in the commentaries on which Professor Hamoudi relied. It was only later when he reflected further on the point and looked at the commentary by Marqis that he concluded that the interpretations of Article 211 given in the commentaries relied on by Professor Hamoudi are mistaken.

40. In so far as Mr Dawood suggested that the joint experts’ report did not accurately represent his opinion at the time when he signed it, I reject his evidence. The meaning of Article 211 was evidently discussed at the experts’ meeting and, although of course possible, I consider it unlikely that Professor Hamoudi had misunderstood or misrecorded Mr Dawood’s view on the point when he drafted the joint report. It is also unlikely that Mr Dawood, even if he did not read the draft report with the care to be expected before he signed it, could have failed to notice either then or soon afterwards the passages which record a common view about “drowning out”, giving the example of the negligent driver and the thief. Furthermore, that view is, as already indicated, consistent with what Mr Dawood had said in his own expert report. Finally, Mr Dawood’s evidence that he had no basis on which to disagree with the views of Sanhuri and Hakim at the time of his meeting with Professor Hamoudi makes it all the more likely that he knowingly agreed at that stage to what was written in the joint experts’ report.

Court Scenes from Major Trials drawn by Priscilla Coleman

Ian Botham and Allan Lamb v Imran Khan

Ian Botham and Allan Lamb v Imran Khan

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Van Oord UK Limited and SICIM Roadbridge Limited v Allseas UK Limited [2015] EWHC

In front of: Mr Justice Coulson

But I regret to say that I came to the conclusions that his evidence was entirely worthless.”
Mr Justice Coulson

80.Each side called a quantum expert: OSR called Mr Lester, and AUK called Mr Kitt. Given that there was a myriad of options as to the valuation of some of the relevant Line Items, I accept that both men had an unenviable task. But, unhappily, I found that the difference in approach between the OSR and the AUK factual witnesses was even more marked when it came to the expert evidence. I endeavoured to give Mr Lester the benefit of the doubt, particularly given his frank admission that he had not previously prepared a written expert’s report or given evidence in the High Court, and because I was aware that he was dealing with a serious illness in his family. His abrupt departure from the witness box at a short break for the transcribers, never to return, was an indication of the undoubted stress he was under. But I regret to say that I came to the conclusions that his evidence was entirely worthless. There were a total of twelve different reasons for that conclusion.

81. First, I find that Mr Lester repeatedly took OSR’s pleaded claims at face value and did not check the underlying documents that supported or undermined them…..

82. Secondly, as he made plain in his cross-examination, he prepared his report by only looking at the witness statements prepared on behalf of OSR. He did not look at the witness statements prepared on behalf of AUK. ….

83. Thirdly, in contrast to Mr Kitt, Mr Lester refused to value these claims on any basis, or on any assumption, other than the full basis of the OSR claim (which had been prepared by Dal Sterling, claims consultants who did not give evidence)…..

84. Fourthly, not only did Mr Lester base his promotion of the OSR claims on made-up or calculated rates, but he never once considered, let alone formulated, claims based upon the actual costs incurred by OSR…..

85. Fifthly, throughout his cross-examination, Mr Lester was caught out on numerous matters, most of which were (with respect to Mr Lofthouse QC) relatively obvious, because so many of them had been pointed out months earlier by Mr Kitt in his first report. Mr Lester originally said that these were typing errors or examples of poor presentation, ……

86. Sixthly, the widespread and important elements of the claim, which he admitted he could no longer support, drove him to say in cross-examination that he was not happy with any of his reports, not even with the one provided during the last week of the trial, just before he gave his oral evidence. If an expert disowns his own reports in this way, the court cannot sensibly have any regard to them.

87. Seventhly, he repeatedly accepted that parts of his reports were confusing and accepted on more than one occasion that they were positively misleading…… .

88. Eighthly, he appended documents to his original report which he had either not looked at all, or had certainly not checked in any detail….

89. Ninthly, he made repeated assertions in his reports that appeared to be expressions of his own views. They were certainly not attributed to anybody else. But in cross-examination it was revealed that these assertions came straight from discussions he had had with OSR witnesses, …..

In fact the cross-examination revealed that the schedule contained important errors and must be discounted in its entirety.”
Mr Justice Coulson

90. Tenthly, this process reached its logical conclusion when a schedule was identified by Mr Lester in the third joint statement (produced just before Day 9 of the trial), following ‘Without Prejudice’ meetings with Mr Kitt. The statement said that he had prepared the schedule. In fact, it turned out that the schedule had been produced by Mr O’Rourke and Mr Mulcair. Mr Lester, having accepted in cross-examination that he had not prepared it, continued to maintain that he had checked and approved it. However, further cross-examination revealed that what he meant by that was that he had discussed the schedule with Mr Mulcair, and had accepted what Mr Mulcair had said about it. In fact the cross-examination revealed that the schedule contained important errors and must be discounted in its entirety.

91. Eleventhly, following on from Mr Lester’s uncritical passing on of the OSR claims and the Dal Sterling claim documents, he accepted, as he was bound to do, that instead of checking the claims himself, he had preferred to recite what others had told him, even though what he had been told could be shown to be obviously wrong.

92. Finally, Mr Lester confirmed to me that he had never considered valuing these Line Items by reference to fair and reasonable rates. Remarkably, he seemed almost proud that he had not embarked on that exercise. In my view, this omission made the entirety of the valuation exercise he had carried out of no value, because he had not, even as a cross-check, investigated whether the figures he was so carelessly promoting were actually fair or reasonable, ……

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Scott v EAR Sheppard Consulting Civil and Structural Engineers Ltd [2016] EWHC 1949 (TCC)

In front of: Mr Justice Fraser

The case concerned a claim for professional negligence brought by the three claimants, all members of the same family, against the defendant E.A.R. Sheppard Consulting Civil and Structural Engineers Ltd

The Defendants Expert witness:

  • Was “quick top dismiss evidence which diod not fit his ovberall thesis, from which he appeared reluctant to move
  • Made allegations of serious propfessional misconduct (“conspiracy theories”);
  • Adopted an approach to BRE Guidance on tilting walls which was “verging on the cavalier”;
  • Used the wrong standard of proof;
  • Gave “mealy mouthed responses”;
  • his attitude to answering questions was rather evasive”.

The Judge was of the view “……… the expert engineering evidence of Mr Cockayne was of extraordinary limited evidential value at all, is any”.

59.Each of Mr Taylor and Mr Cockayne were adequately qualified to give the court expert engineering evidence. I prefer the evidence of Mr Taylor in all respects in which the two engineering experts differ for the following seven reasons.

60. Firstly, Mr Taylor personally inspected the Property. Mr Cockayne has never had that opportunity. For whatever reason, notwithstanding the ample notice that the defendant had both of the claim, the situation, the intended demolition, and the express invitation if not encouragement to inspect, Mr Cockayne was only instructed after the demolition had taken place.

61. Secondly, Mr Cockayne was remarkably quick to dismiss evidence that did not fit his overall thesis, from which he appeared reluctant to move. For example, it is rare for an expert to comment upon what appears to be a perfectly straightforward photograph and comment that “it might be distorted”. There was no reason to suggest that photographs were distorted, other than the fact that what those photographs showed did not suit Mr Cockayne. I found the photographs to be very useful. I found Mr Cockayne’s response to these useful photographs to be highly illustrative to his approach in general when giving expert evidence on the issues in this case.

62. Thirdly, he made an allegation of serious unprofessional conduct on the part of two professional engineers, namely the authors of the BdR and Tribrach Reports, and expressly stated in the Joint Experts’ Statement that their views may have been influenced by the prospect of further fee income involved in being instructed for the demolition works. This allegation is unfounded for two reasons. It would be an obvious breach of professional conduct on the part of the engineers in question. Further, there would be higher fees available in any event for an unscrupulous engineer if alternative remedial schemes (short of demolition) were to be pursued. This theory of Mr Cockayne was described by Mr Goldstone as his “conspiracy theory”, for rather obviously it would require both of BdR and Tribrach to be guided by the same disreputable motives. I find there is no basis for such a suggestion and it is wholly without foundation in both cases. The fact that it was raised is not to Mr Cockayne’s credit. He raised this in an entirely unsatisfactory way, saying: “I suggested it might be but I don’t think it was a firm affirmation that they definitely were”. He also said:
“It would be very easy to infer they were of a mind to get more work out of further involvement with the building.”
This, in my judgment, is simply mud-slinging on his part. To be entirely fair to Mr Sheppard, he quite rightly and promptly dismissed this suggestion when it was put to him, and he at no point wished to associate himself with Mr Cockayne’s conspiracy theory.

…….. verging on the cavalier at times..”
Mr Justice Fraser/blockquote>

63. Fourthly, Mr Cockayne’s approach to BRE Guidance on tilting walls in buildings was, in my judgment, verging on the cavalier at times. BRE Digest 475 “Tilt of low-rise buildings” carefully explains the considerations of tilt in existing buildings. Table 2 “indicative values for tilting of low-rise housing” sets out different classifications, and the most extreme is “Ultimate limit” at 1/50 (or more severe). This states:
“If tilt reaches this level, the building may be regarded as in a dangerous condition, and remedial action either to re-level or to demolish the building will be required urgently.”
Mr Cockayne insisted, in my judgment in an attempt to detract attention from Mr Taylor’s measurements, on the need for further investigation and possible remedial action other than demolition. He also stated, “It might be possible to restore the building to some verticality” and that he would only be in favour of demolition if a feasibility study was first done on any one of a number of alternative schemes. He constantly confused or failed to differentiate between the advice that should have been given at the time, with what could have been done to remedy the problems with the building. Given Mr Sheppard had not identified extensive remedial action to remedy the serious problems with the titling walls – well beyond the ultimate limit of 1/50 given by the BRE – this was unhelpful. Buildings can, and sometimes are, saved from very significant tilt; one example discussed in submissions was the Leaning Tower of Pisa. Feasibility of wildly different remedial schemes, and their cost, is a different issue to breach of duty. The issue is: what should Sheppard Ltd have advised at the time? The fact that expensive investigations and design of alternative schemes could have been performed, instead of demolishing the Property, is rather off the point because Mr Sheppard advised neither. He simply did not mention the tilting walls at all.

64. Fifthly, Mr Cockayne was also applying the wrong standard of proof as he said that the BdR and Tribrach Reports did not “prove beyond doubt” the Property was subject to plain and obvious tilt. He agreed when the point was put to him again that he had wanted to assure himself that these engineers were right “beyond reasonable doubt”. That is not the standard of proof in civil litigation.

65. Sixthly, he was asked whether a prudent purchaser, if considering a building with tilting walls, would want to know if the property in question were “even close to the ultimate limit category”. His answer was, “If that was the brief.” This is a mealy-mouthed response to a very basic point concerning structural stability. It cannot seriously be suggested that a competent engineer exercising reasonable care and skill would only be obliged to tell a purchaser that the walls were tilting close to the “ultimate limit” of 1/50 if that was the brief given to them.

Finally, his attitude to answering questions was rather evasive.”
Mr Justice Fraser

66. Finally, his attitude to answering questions was rather evasive. On occasion, even the most simplistic questions were simply avoided. Mr Howarth often had to put the same question two or even three times.

H: Findings

67. All of these points taken collectively lead me to conclude that the expert engineering evidence of Mr Cockayne was of extraordinarily limited evidential value at all, if any. I found him, as an expert witness, highly unsatisfactory in almost all respects.

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Arroyo & Ors v Equion Energia Ltd [2013] EWHC 3173 (TCC) (18 October 2013)

In front of: The Honourable Mr Justice Stuart-Smith

5.….The Defendant’s objection to the admission of Mr Willis’ report has five main strands. First, it challenges Mr Willis’ expertise and his qualifications to provide expert evidence. Formal membership of specialist associations or institutes, whether by examination or otherwise, is not the necessary touchstone for expertise. The Defendant points out, correctly, that the great majority of Mr Willis’s experience is in relation to the laying of offshore pipelines. However, Mr Willis has been practising in the field since 1972. He became a member of the Institution of Civil Engineers and became a chartered engineer in 1975, and in 1995 he became a fellow of the Institution of Civil Engineers. According to his report, he has wide-ranging experience which should qualify him to speak with expertise on the matters which are in issue in this action. Whether his evidence proves to be reliable and authoritative is a question that will doubtless be explored if he is called to give evidence.

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Kennedy (Appellant) v Cordia (Services) LLP (Respondent) (Scotland) [2016] UKSC 6

This case has been written up in full previously – please see page via the link.

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Arroyo & Ors v Equion Energia Ltd [2016] EWHC 3348 (TCC) (21 December 2016)

In front of: The Honourable Mr Justice Stuart-Smith

58.…The inclusion of the new calculations in Dr Card’s fourth report constituted a deliberate and serious breach of the Court’s order limiting the scope of additional reports. The seriousness of the breach was compounded by the timing of the fourth report, coming as it did so shortly before trial. The additional burdens upon the Defendant when confronted by what amounted to a new expert case five weeks before trial were substantial and unwarranted. The breach was further compounded by failing to provide the workings that lay behind the new calculations until 1 October 2014, the day before the trial started. Having realised that his calculations were wrong, Dr Card then tried to improve his position by providing his fifth report on Day 22, four days before he was called to give evidence. In doing so he gave an explanation for the new calculations which was seriously misleading. Finally, Leigh Day’s explanation in their letter serving the report was not a fair summary of what had happened and was itself seriously misleading.

59. ….Because it was not put to him that he set out to mislead the Court, I did not make a finding that he did; and I do not do so now. But, with that important qualification, the history surrounding the fourth and fifth reports, which the Claimants acknowledge to be “most regrettable”, justifies serious and unequivocal condemnation: it is a history that is way beyond the norm even allowing for the fact that Dr Card was acting under remorseless pressure. The remorseless pressures of this litigation were not confined to those imposed on the Claimants in and about the preparation of Dr Card’s fourth and fifth reports; and they do not begin to justify what happened.

64. The Willis Report: the Claimants persuaded the Court to admit the Willis report for the reasons given in the separate judgment at the time. It can be seen to be a borderline decision by the Court which did not in the end add usefully to the evidence at trial; and it was a decision that the Court took in the face of submissions that Mr Willis lacked relevant expertise or the ability to provide relevant evidence. It seems to me to be wrong in principle to treat the Claimants’ conduct in serving a report by Mr Willis and calling him to give evidence as conduct that should tend towards an order for indemnity costs when that conduct had been sanctioned by the Court after a contested hearing. The fact that the Defendant’s submissions about the value of calling Mr Willis were proved to be right does not affect the reasonableness of the Claimants’ conduct in seeking the order of the Court and then complying with it.

72. …..The first is the various iterations of the Schedules of Loss which, for the reasons outlined in the Main Judgment and above, were beyond the norm both in the inadequacy of their preparation and construction and in their consequences for the progression of the case. The second is the service in mid-2013 of a body of expert evidence that was seriously defective as a result of the misleading presentation of an interdisciplinary approach. That defect was compounded by the failure of the experts to give proper attention to the ODC pipeline, either then or when its potential significance was apparent from the materials disclosed by the Defendant. The third is the Calderbank offer, the context for which is provided by the letters from Leigh Day that I have set out above and by its timing in the context of the litigation as a whole. The fourth is the history surrounding Dr Card’s fourth and fifth reports.

Dr Card had “lost those qualities of objectivity and independence of mind which are essential for an expert in contested litigation and that he had become caught up in the siege-mentality which was painfully obvious on a number of occasions (on both sides) during the trial.”
The Honourable Mr Justice Stuart-Smith

73. ….I concluded in the Main Judgment that, by the time of his fourth report, Dr Card had “lost those qualities of objectivity and independence of mind which are essential for an expert in contested litigation and that he had become caught up in the siege-mentality which was painfully obvious on a number of occasions (on both sides) during the trial” … . I found that Dr Tobon “lacked the objectivity and scientific rigour that was required both by the task and the standards he would set himself and by the Court”, that his work showed (unknowing) bias, and that he was prepared to include information in support of his conclusions without verifying it: see MJ[668]. As the Main Judgment makes clear, responsibility for the presentation of Dr Card’s fourth and fifth reports does not rest with Dr Card alone. That indicates that the siege mentality and lack of independence of mind had penetrated the legal team as well, though I do not know precisely where responsibility lies. The fact (as I find it to be) that the siege mentality and lack of independence of mind had spread in that way demonstrates not merely that the case is beyond the norm, but that something has gone very seriously wrong.

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Roman Polanski v Vanity Fair

Roman Polanski v Vanity Fair

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Re W (A Child) [2016] EWCA Civ 793 (29 July 2016)

In front of: Lord Justice Jackson, Lord Justice McFarlane and Lord Justice Lindblom

…… this Children’s Guardian’s report as being wholly inadequate ……”
Lord Justice Jackson, Lord Justice McFarlane and Lord Justice Lindblom

17.It is unfortunately necessary to describe this Children’s Guardian’s report as being wholly inadequate and, in a number of serious respects, downright wrong. In attaching that highly negative description to the Guardian’s work I am conscious that the appeal process has not afforded the author of the report any opportunity to explain the circumstances. During the hearing, on instructions, her counsel, Mr Nicholas Stoner QC, who did not appear below, and Mr Stephen Ainsley who did, told the court that the Guardian accepted that the written analysis was inadequate. It is not my wish to cause the Guardian undue professional or personal embarrassment, but it is, unfortunately, necessary to spell out the defects in this document and in the Guardian’s oral evidence because of the reliance placed upon her opinion by the judge in his overall welfare evaluation.

18. In that context, I would draw particular attention to the following points taken in the order in which they appear in the report, rather than any order of importance:
a) On the front cover the “application type” is said to be “Child Arrangement Order”. No mention is made of the adoption application which was, at that stage, the only substantive application before the court as the question of leave to apply for a Child Arrangement Order or Special Guardianship Order had yet to be determined;
b) The “hearing type” is said to be “final” with a hearing date of “9 December 2015”. On its face, therefore, the report purports to be a “final” report and, indeed, the Guardian did not submit any further report prior to or during the hearing in front of Bodey J five months later in April 2016;
c) In a box identifying the “parties” the only names to appear are those of the parents and paternal grandparents. Mr and Mrs X do not feature in that list;
d) …..

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Allen Tod Architecture Ltd v Capita Property and Infrastructure Ltd [2016] EWHC 2171 (TCC) (26 August 2016)

In front of: His Honour Judge David Grant

RULING on expert opinion evidence

A professional negligence claim against a structural engineer. The Claimant had lost faith in their Expert Witness as a result of delay in completing the report and asked the court for leave to instruct a second expert witness. The court agreed subject to the original notes of the first expert and his draft report being disclosed.

The disclosure principles which were identified in this case were:

  • It was within the courts power
  • The court can allow a replacement expert witness but usually only if the first expert’s report is disclosed;
  • The expert witness owes its duty to the court and so there is no justification for non disclosure;
  • The expert witness owes its duty to the court and so there is no justification for non disclosure;
  • There would normally need to be strong evidence of “expert shopping” before ordering documents other than the report to be disclosed as a condition of allowing a replacement expert..

The judgement stated:

Privilege 38. In my judgment there is no difference of substance between the position which obtains where the condition to be imposed is (a) disclosure of the previous report (in the form of a final and/or signed and/or Part 35 compliant report) of expert A, or (b) disclosure of any earlier draft or provisional report, or other relevant document, produced by expert A in which he sets out the substance of his opinion on the issues in the case, which would not have been discloseable had expert A remained the expert witness of the applying party. Accordingly, I do not find the fact that any of the documents presently sought to be disclosed are or may be cloaked with the cover of privilege is a reason for them now not to be disclosed as part of the price which the claimant will have to pay in order to call expert B as its expert witness at trial.

………. by ordering disclosure of expert A’s notes and preliminary report as a condition of permitting the claimant now to rely on expert B.”
His Honour Judge David Grant

Disclosure 42. I bear in mind the point made by Coulson J in Odedra v Richard Ball [2012] EWHC 1790 that “… there could be no general rule that everything is discloseable, regardless of privilege”: see paragraph 48 of Mr Patten QC’s written submissions. As set out in principle (4) in Coyne: the power of the court is one to be exercised reasonably on a case-by-case basis, in each case having regard to all the circumstances of the particular case. In the circumstances of the present case, the evidence indicates that expert A’s notes and preliminary report are documents in which he expressed his opinion on the issues in the case. Accordingly, that power is to be exercised reasonably by ordering disclosure of expert A’s notes and preliminary report as a condition of permitting the claimant now to rely on expert B.

Expert Shopping 45. I have come to the conclusion that this is either not a case of expert shopping or, if it is, then it is only so to a faint degree. There is an inherent problem with the use of the expression “expert shopping”. It inevitably carries the pejorative connotation of its use at one end of the scale, namely in circumstances where a party has become dissatisfied with the substance of the opinion of expert A, and seeks for understandable and/or reasonable reasons to obtain a more favourable opinion from new expert B. But, as Hughes LJ explained in Edwards-Tubb, there is a wide range of circumstances in which a party may wish to change its expert, for example – as was the case in BMG – the retirement from practice of expert A. Nevertheless, as in BMG, even in a case where there is only a faint degree of expert shopping, the court may still direct disclosure of material produced by expert A in which he or she expresses his or her opinion on the issues in the case as a condition of permitting the applying party to rely on new expert B.

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Re F (a minor) [2016] EWHC 2149 (Fam)

In front of: Mr Justice Hayden

In the case a clinical psychologist who was instructed as an expert witness was found to have included findings that whilst much was rooted in reliable evidence, it had been manipulated in such a way which was wholly unacceptable.

Hayden J stated:

15.…..When pursued in cross examination it was revealed that extensive parts of the report which purport, by the conventional grammatical use of quotation marks, to be direct quotations from the Mother, are in fact nothing of the kind. They are a collection of recollections and impressions compressed into phrases created by Dr Harper and attributed to the Mother. …..

The overall impression is of expert who is over reaching his material, …….”
Mr Justice Hayden

26. The overall impression is of expert who is over reaching his material, in the sense that whilst much of it is rooted in genuine reliable secure evidence, it is represented in such a way that it is designed to give it its maximum forensic impact. That involves a manipulation of material which is wholly unacceptable and, at least, falls far below the standard that any Court is entitled to expect of any expert witness. It simply cannot be reconciled with those duties which I have pointedly set out ………………… Dr Harper’s professional failure here compromised the fairness of the process for both mother and children.

32. … I do consider that his disregard for the conventional principles of professional method and analysis displays a zealotry which he should recognise as a danger to him as a professional and, more importantly, to those who I believe he is otherwise genuinely motivated to help and whom he plainly has much to offer.

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Hatfield -v- Drax Power Ltd (18/08/2017)

In front of: Her Honour Judge Belcher

The joint report has some highly “characterful” language from the Claimant’s expert (which played a part in his evidence being rejected in full).

Professor Vantsevich’s evidence was extraordinary in its presentation and, frankly, shot through with breath taking arrogance.”
Her Honour Judge Belcher

48.Professor Vantsevich’s evidence was extraordinary in its presentation and, frankly, shot through with breath taking arrogance. His stance throughout was that he was right and everybody else was wron. That stance appears, first of all, in the joint statement of the experts in the following extracts. Professor Vantsevich “….observes that Dr Walsh and Mr Mutch need to take an undergraduate university course on vehicle dynamics to understand the assumptions and their relevance to the circumstances of the incident.” (B2:889, paragraph; “… Strongly recommends the [defence] experts to attend a vehicle dynamics course to understand the subject matter of Professor Vantsevich’s report (B2:890, paragraph; “…. Would like to point out that the two [defence] experts also have problems with understanding both the second law and the third law of Newton…(B2:894, paragraph 3.7.2); and “…encourages them to learn the engineering meaning of “possible” and “probable”.” (B2:901, paragraph 3.19.3).

49. The same arrogance is self evident in his replies to Part 35 questions put to him by the Second Defendant. In rejecting one point put to him for comment, he goes on to assert that his response is “high school physics” (B2:712, Answers to 10.2). In other places he fails to assist the court by dealing with the matters put to him. At question 9, he was asked to assume that the trial judge finds as a fact that the tyre patterns on the surface of the road show a clear pattern without signs of skidding, and he is then asked whether such a finding would invalidate his hypothesis. Rather than answer the question, he simply says “I cannot accept your weak hypothesis to find a “clear pattern without signs of skidding” (B2:711, Answer to 9.1) . Not only does that fail to answer the question, it also fails to recognise that it is for me, as the judge, to make the findings of fact in this case.

He plainly felt he was right and everyone else was wrong.”
Her Honour Judge Belcher

50. That arrogance came over in the witness box. He plainly felt he was right and everyone else was wrong. Indeed, I made a comment to that effect during the course of his evidence. Furthermore, after he had completed his evidence, he sat in the well of the court shaking his head from side to side, evidencing his disagreement, and, judging by his face, his disgust, with the evidence being given by Mr Mutch, the first of the Defendant experts to be called. I made it clear to Professor Vantsevich that that behaviour was unacceptable and whilst, on the whole, he managed to contain himself, I did catch him on further occasions shaking his head at the evidence given. That conduct is wholly discreditable to an expert witness in our courts. I have never seen it before, even in cases where experts are poles apart in their opinions.

63. I have no hesitation in accepting the evidence of the defence experts in preference to the evidence of Professor Vantsevich. I reject Professor Vantsevich’s theoretical possibility, particularly in circumstances where he accepts that he was, in effect, instructed simply to explore that as a possibility. He was forced to accept there could have been other reasons for this accident. He told me his theory is one of a 100 possibilities. Asked how his theory stands up in the absence of repeated accidents or other problems on the Road, Professor Vantsevich resorted to this being a particular combination of circumstances which had all happened to come together for that truck on that Road. He said it will happen again one day. I regret that these answers were wholly implausible, clutching at straws in my judgment to support his theory which had collapsed under sustained forensic cross examination.

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Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited [2017] EWHC 1763 (TCC)

In front of: Mr Justice Fraser

Here Mr Justice Fraser was highly critical of the behaviour of two expert witnesses called by ICI who misused the joint report process.

62. Before turning to each of the experts and how they approached their task, and their evidence overall, it is necessary to make some observations on the contents of the experts’ joint statements. Joint statements were ordered by Coulson J in the usual way, and such documents are important in cases such as this one to agree matters (where any particular area of the expert evidence can be agreed) and to identify the real areas of dispute. In this case, the two statements were dated 20 April 2017 and 2 May 2017.

63. Paragraphs 16 to 31 of the First Joint Statement were added to that document on the day that it was signed, namely 20 April 2017, by Mr Millwood and Mr Consonni, the two experts for ICI, without any opportunity for discussion or review of those paragraphs with Mr Parry. Those paragraphs were therefore used by the two experts for ICI as a way of bolstering, or adding, to their written evidence, after that written evidence had been served in the usual way in their expert reports which were served earlier. That is not the function of a joint statement by experts.

64. Further, paragraph 130 of the First Joint Statement contained the following statement: “[Mr Consonni]’s opinion is also that due to the inadequate quality of the welding produced by MMT and to the exceptionally high repair rates…..it would have been reasonable for ICI to have lost confidence in MMT’s ability to carry out the rectification works to an acceptable standard.

Entries such as these in the Joint Statements gave the impression that the experts for ICI were anxious to bolster ICI’s case.”
Edward de Bono

The repair rates, and whether they were “exceptionally high” or not – MMT’s case is that they were not, and that the sample(s) chosen by ICI were deliberately skewed, a subject which is dealt with in greater detail below – is a disputed matter of fact and Mr Consonni should not have been simply accepting ICI’s case in this respect. Doing so raises real questions about the quality of his evidence. However, regardless of that, whether or not ICI were justified in losing confidence in MMT is a question for the court, and not one upon which expert evidence is admissible. I informed the parties that I considered such evidence inadmissible, and therefore no cross-examination was required on this point, and neither counsel sought to persuade me otherwise. An experts’ joint statement should not be used for such statements, and an independent expert on technical issues should not be giving an opinion on such matters. Entries such as these in the Joint Statements gave the impression that the experts for ICI were anxious to bolster ICI’s case.

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Bank of Ireland v Watts Group Plc [2017] EWHC 1667 (TCC)

In front of: The Honourable Mr Justice Coulson

This was a case where the court concluded that the written and oral expert evidence adduced on behalf of the Claimant was unreliable as the expert was not independent. The Claimant was in fact the expert’s principal client and provided the vast majority of his work and fees. The court found that the expert was unaware of the difference between being an advocate and those of an expert witness. The judge said:

62.…. His unrealistic approach to the allegations; his attempt to mislead the court; his application of the wrong test; his unreasonable intransigence which led to his refusal to make any concessions whatsoever; and the fact that many of his criticisms; which he did not withdraw, were so unpersuasive that the Bank, quite properly, declined even to plead them as allegations of professional negligence….

63. Furthermore, Mr Vosser’s criticisms were not limited to a single report. He produced a second detailed report and then, the week before trial, another lever arch file of new documents purporting to address the key paragraphs of Mr Russell’s witness statement (paragraph 35 above). Mr Vosser said that this material was designed to show that the three properties considered by Mr Russell in January 2008 were not proper comparables, a point which he could have made in his second expert’s report, but failed so to do. This excessive industry only confirmed my view that Mr Vosser was prepared to go to any lengths to shore up the Bank’s case.

5.2.4 Attempt to Mislead

64. One of the major issues raised in Mr Vosser’s expert report was his uncompromising view that Watts, as the monitoring surveyor, were obliged to start from scratch and produce their own detailed breakdown of the construction costs. He justified this approach by referring to the relevant RICS guidance, which he quoted as saying: “the Project Monitor…may have to develop his or her own elemental breakdown of construction costs to prove or disprove the Developer’s figures”.
However, that was a highly misleading quotation. The full passage reads:

When involved with smaller developments and inexperienced Clients and Contractors, the Project Monitor, whilst strictly responsible to the Client, may also be asked to perform a hand-holding exercise with the Client and may have to develop his or her own elemental breakdown of construction costs to prove or disprove the Developer’s figures.” (Words in bold omitted by Mr Vosser).

In other words, the passage which Mr Vosser purportedly quoted in his report deliberately excised the words which would have shown that this part of the RICS guidance was completely irrelevant to the facts of this case (because the Bank was not inexperienced, because the contractor/Borrower was not inexperienced, because this was not a small development, and because Watts were not being asked to perform “a hand-holding exercise”). This was a blatant misuse of a source document, in order to present a criticism on a false basis. It was clean contrary to Mr Vosser’s duty to the court.

5.2.5 Wrong Test

66. In my view, Mr Vosser’s oral evidence made plain that he was applying the wrong test. He was not looking to see what a reasonably competent monitoring surveyor would have done in the circumstances, and to test Watt’s performance against that benchmark. Instead, he repeatedly said that what he was doing was setting out what he claimed he would have done, line-by-line, figure-by-figure. That exercise produced a range of figures for construction costs between £1.445 million and £1.8 million. His evidence was that this was what he did, so this is what Watts should have done too. In this way, there were never any margins of error in Mr Vosser’s analysis; no broader parameters within which a monitoring surveyors’ performance was to be judged[2]. In his view, because they failed to advise that the construction costs would be £1.445 million or more, Watts were at fault. Accordingly, I doubted whether his evidence went to the right issue.

5.2.6 Unreasonableness

67. I consider that Mr Vosser’s approach was thoroughly unreasonable. The agreed note demonstrated that he made no concessions at the experts’ ‘without prejudice meetings’, using them instead – quite deliberately – to raise entirely new matters with his opposite number, Mr Whitehead. He made no obvious concessions in his oral evidence although in his closing submissions, Mr Mitchell accepted one (which may be important on causation: see paragraphs 107 and 144 below). I observed at the outset of the trial that I had never seen a Joint Statement between experts that contained no agreement at all. I find that the main reason why the Joint Statement in this case contained no such agreement was due to Mr Vosser’s complete failure to make any concessions at all.

68. Some examples of his unreasonable approach may be noted. One concerned the nature and scope of design warranties. It was put to Mr Vosser in cross-examination that, this being a matter of legal rights and obligations, it would primarily be a matter for the solicitors. Mr Vosser disagreed and said that this was an important matter for the monitoring surveyor. He was plainly wrong about that: the terms of warranties are for lawyers, not monitoring surveyors. It was obviously unreasonable for him to maintain that stance.

69. Another example of Mr Vosser’s unreasonableness concerned the events after the IAR. It is a striking feature of this case that the Bank’s pleaded allegations go no further than the initial report produced in April 2008. They make no pleaded criticisms of the subsequent reports produced by Watts. And yet, despite that, Mr Vosser’s first and second reports included lengthy sections which were concerned with these unpleaded allegations, which he continued to try and advance during his oral evidence. In my view, this was yet further evidence of unreasonableness, an expert insisting on making criticisms which the Bank have deliberately chosen not to plead.

For him, it might be said that The Ikarian Reefer was a ship that passed in the night.”
The Honourable Mr Justice Coulson

5.2.7 Summary

70. The duties of an independent expert are set out in the well-known passages of the judgment in The Ikarian Reefer [2000] 1 WLR 603. For the reasons set out above, Mr Vosser did not comply with those duties and I was not confident that he was aware of them or had had them explained. For him, it might be said that The Ikarian Reefer was a ship that passed in the night.

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EXP v Barker [2017] EWCA Civ 63

In front of: Lady Justice Black, Lord Justice Black and Lord Justice Henderson

the Defendant and one of his expert witnesses had a “lengthy and extensive” previous relationship.”
Lady Justice Black, Lord Justice Black and Lord Justice Henderson

This was a clinical negligence case in which it eventually emerged under cross-examination that the Defendant and one of his expert witnesses had a “lengthy and extensive” previous relationship. The expert Dr Molyneux had trained the Defendant during his seven years of specialist radiology training. They had also written a paper together.

At first instance the judge held that Dr. Molyneux’s independence and objectivity had been “very substantially” undermined. As such, the judge preferred the evidence of the Claimant’s expert.

The Defendant appealed, and the case came before the Court of Appeal earlier this year. The appeal was dismissed. The court found that the judge had been entitled to take the view that the weight to be attached to Dr Molyneux’s evidence was considerably diminished, and that it would have been justified in excluding it altogether. Irwin LJ, at paragraph 51 of the judgment, stated as follows: “Our adversarial system depends heavily on the independence of expert witnesses, on the primacy of their duty to the Court over any other loyalty or obligation, and on the rigour with which experts make known any associations or loyalties which might give rise to a conflict. Dr Molyneux failed to do so here, despite an express direction to that effect. Indeed, the omission of mention of papers co-authored with Dr Barker points in the other direction

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Grenfell Fire Public Enquiry [2018]

Chairman: Sir Martin Moore-Bick

As reported from the Guardian on 22nd June 2018.

The public inquiry into the Grenfell Tower disaster has sacked its expert architectural witness after it emerged he was not a registered architect. John Priestley, who was appointed on Wednesday to produce a report into the architectural design of the refurbishment of Grenfell Tower, was sacked on Friday.

He had been due to examine the choice of materials, compliance with legislation and regulations, and the quality of the workmanship on the building. He was expected to draw up detailed technical evidence that would be relied on by the inquiry during its second stage, starting next spring, looking into the lead-up to the fire on 14 June 2017, which claimed 72 lives.

According to the inquiry, before he was instructed, Priestley told officials he was a UK registered and chartered architect. However, he was last registered with the professional regulator in 2010, the Architects Journal reported. Architects must pay an annual retention fee to remain on the register.

On 20th June the announcement was made: https://www.grenfelltowerinquiry.org.uk/news/inquiry-instructs-expert-witness-1

Inquiry instructs expert witness

The Inquiry has instructed John Priestley, John Priestley Associates, as an expert witness.
John will be producing a report considering aspects of the architectural design in relation to the refurbishment of Grenfell Tower, including: the choice of materials; the development of the design; compliance with legislation and regulations; and the quality of the workmanship.

On 22nd June the announcement was made: https://www.grenfelltowerinquiry.org.uk/news/update-expert-witness

…… the Inquiry has withdrawn his instruction as an expert witness.”
Sir Martin Moore-Bick

Update on expert witness

The Inquiry has issued an update on the recent instruction of John Priestley as an expert witness.
All expert witnesses instructed by the Inquiry are expected to comply with any relevant provisions and professional codes of conduct. Before he was instructed John Priestley confirmed he was a UK registered and chartered architect.
Following the receipt of information that Mr Priestley is not currently registered with the Architects Registration Board, the Inquiry has withdrawn his instruction as an expert witness.

Court Scenes from Major Trials drawn by Priscilla Coleman

Jeffrey Archer v Express Newspapers

Jeffrey Archer v Express Newspapers

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Kent County Council v C & Others [2018] EWFC B28

In front of: Her Honour Judge W Blackhouse

HHJ Blackstone criticised the three local authorities experts.

24.……. Dr Das said frequently in evidence that he could not remember, and was altogether an unimpressive witness.

In my judgement he is far too dogmatic in his conclusions……..”
Her Honour Judge W Blackhouse

Dr Yadav (Consultant Paediatrician)

31.In my judgement he is far too dogmatic in his conclusions, and both in his report and answers to questions and in his oral evidence he was dismissive and indeed, impatient with questions or alternative explanations. I am afraid that I have to conclude that his evidence cannot be said to be fair or balanced, which therefore limits the reliance that I can place on his conclusions.

Dr Sally Gaskins Clinical Psychologist concluded in paragraph 47 that the “L” had a “developmental trauma disorder related to experience of witnessing and being the subject of violence within the home”.

48.This diagnosis comes from Mrs Gaskins. She admits that it is not a recognised diagnosis. It was put forward in a paper by a group of psychologists in 2005. That has not been accepted by the main body of psychologists. In my judgment, it is not proper to put such a diagnosis in a Court report. What is abundantly clear, though, and this is her essential conclusion, is that L is a deeply traumatised child as a result of his experiences of the domestic abuse. He has not felt safe in the care of his mother and he does not trust her.

51. In my judgment, and, indeed, Mrs Gaskins accepted this, she has strayed well beyond her remit and is not entitled to reach that conclusion based on merely seeing D once; it was not even an observation. This is in no shape or form a proper assessment of D.

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R v Alex Julian Pabon, [2018] EWCA Crim 420 (13 March 2018)

In front of: Lord Justice Gross, Mr Justice Sweeney and Mr Justice Haddon-Cave

Lord Justice Gross on Paul Hayden-Rowe.

58.We take a grave view of Rowe’s conduct; questions of sanction are not for us so we say no more sanction but highlight his failings here for the consideration of others.

The instruction of Rowe turned into an embarrassing debacle for the SFO……..”
Lord Justice Gross

76. The instruction of Rowe turned into an embarrassing debacle for the SFO, all the more so, given the high-profile nature of these cases and notwithstanding that, in the event, it has had no impact on the outcome in this case. We pressed Mr Hines as to whether there was an internal report, dealing with lessons learnt. We subsequently received a helpful letter from the SFO’s General Counsel, dated 27th November 2017, stating that there was no such document but that there had been extensive internal discussions resulting in the conclusion “…that Rowe’s conduct resulted from a failure of integrity on his part rather than a failure of SFO policies or procedures”. The SFO undertook to look again at the matter to see whether there was any way in which it could reinforce expert witnesses’ awareness of their obligations under the Crim PR.

77. In fairness to the SFO, this was the third time that Rowe had given evidence in LIBOR trials and the first time any questions concerning his expertise had apparently arisen. Nonetheless, there is no room for complacency and this case stands as a stark reminder of the need for those instructing expert witnesses to satisfy themselves as to the witness’ expertise and to engage (difficult though it sometimes may be) an expert of a suitable calibre.

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R v Nick Wills and League Against Cruel Sports (‘LACS’)

In front of: Judge Daber

It is imperative that an Expert Witness in whatever discipline they operate must be seen to be impartial and unbiased. Professor Stephen Harris one of Britain’s leading authorities on foxes and a longstanding opponent of hunting, was excluded from the trial of Mick Wills, a huntsman with the Grafton after he was spotted kissing a prosecution witness. Judge Daber in Wellingborough Magistrates Court said:

If a relationship exists between a proposed Expert and the party calling that Expert which a reasonable observer might think is evidence of bias, then he must be excluded on the grounds of public policy.”
Judge Daber

…If a relationship exists between a proposed Expert and the party calling that Expert which a reasonable observer might think is evidence of bias, then he must be excluded on the grounds of public policy. Justice must be seen to be done. The allegation of bias specific to this particular case is something in my view the Court cannot ignore. A reasonable observer would consider him to be partisan however, unbiased he may be, this Court must exclude Professor Harris’s evidence”.

Professor Harris is a former Professor of Environmental Sciences at the University of Bristol and has been employed by the CPS previously to give evidence on behalf of the prosecution, despite earlier questions being raised over his independence. In December 2015, a private prosecution brought by the League Against Cruel Sports collapsed after Professor Harris failed to inform the Court about his friendship with Paul Tilsley BLACS Head of Investigation and other connections to the group.

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Arksey v Cambridge University Hospitals NHS Foundation Trust [2019] EWHC 1276 (QB) (21 March 2019)

In front of: The Hon Mr Justice Martin Spencer

Where a poor report had been submitted and not corrected for additional information received prior to trial compounded by a poor preparation for trial. Furthermore his oral evidence was unimpressive. Finally apologising did not help!

62. The particulars of claim were based upon a medical report by the claimant’s expert consultant neurosurgeon, Mr David Sandeman, who had reported on 13 April 2016 and it was this report which proffered the opinion that had Mrs Arksey’s condition been managed according to the protocol, she would have been less likely to have suffered the catastrophic haemorrhage that she did on 4 November 2012, but he acknowledges it is still possible she could have had the haemorrhage when she did. He says re-haemorrhage whilst waiting for coiling in hospital is uncommon, comprising 2-3% of neurosurgical cases and, ‘on the balance of probabilities, therefore, she would not have had a re-bleed before the aneurysm was coiled’. He expressed the opinion that in his view it would have been highly unlikely that she would have had the second haemorrhage if the first had been diagnosed and she was still being managed in hospital. Mr Sandeman referred to the literature suggesting that an initial misdiagnosis is associated with a fourfold increase in the chances of poorer outcome, referring to study by Kowalski and others from 2004.

63. It has to be said that it is surprising to find disclosed as part of the liability evidence a report on liability from an expert which pre-dates the exchange of pleadings to. I say that because, in general, an expert would not submit a final report until certain procedures have been followed through, including, not least, exchange of witness statements, and no reasonable expert reporting for a claimant would want to finalise his report until he had had an opportunity to see any witness statements submitted on the part of the defendant.

64. The importance of that in this case is obvious. Significant and highly material information was contained in the statements of Dr Antoun and Mr Santarius, which would have informed Mr Sandeman’s report on causation and the consequence of Mr Sandeman’s report not being revised and being served in its original form is that those statements were not referred to at all and the contents of them were not taken into account.

71. I regret to say that, in my judgment, Mr Sandeman’s evidence fell far below the standard to be expected of a reasonable, competent expert witness, both in relation to the preparation of his reports and in relation to his preparing to give evidence. I could see no excuse for this whatever.

I regret to say that, in my judgment, Mr Sandeman’s evidence fell far below the standard to be expected of a reasonable, competent expert witness.”
The Hon Mr Justice Martin Spencer

72. I should say, though, that I do not altogether exonerate the lawyers who have represented the claimant because they allowed Mr Sandeman to go into the witness box despite these clear and obvious deficiencies in Mr Sandeman’s written evidence, and this was something which should have been addressed by the lawyers long before the trial.

73. In the end, the continual apologies from Mr Sandeman in the course of his evidence, as the magnitude of the deficiencies became apparent, were embarrassing.

74. Whilst I am considering Mr Sandeman’s evidence I can also indicate that his oral evidence was unimpressive. It was intemperate, at one stage he even used an expletive, and there was a failure on his part to address the questions that he was being asked: recognising the difficulties of some of the questions, not just from Ms Vickers for the defendant but also from the bench, he would stray into other areas and different areas so as to avoid answering the questions. I had no doubt, listening to Mr Sandeman’s evidence, that this was a deliberate ploy on his part to avoid answering the questions, rather than any kind of misunderstanding on his part as to what he was being asked, and the technique was adopted by him because of the difficulty he found himself in, in addressing the questions.

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Carbon Trading Fraud Trial of R v Steven Sulley, Ashley Hunte, David Pierce, Christopher Woolcott, Christopher Chapman, Marcus Allen, Daniel Martin and Lewis Deakin

In front of: Judge Nicholas Loraine-Smith

Andrew Ager had been appointed as an Expert Witness to advise the prosecution and so the court in a trial of eight individuals who had been prosecuted for being involved in a carbon credit fraud.

Mr Ager had previously been used by the prosecution in more than 20 different fraud trials.

Mr Ager could not remember if he had passed his A Levels.”
Judge Nicholas Loraine-Smith

Narita Bahra QC representing Steven Sulley, one of the eight defendants, cross examined Mr Ager on his background. It was during the cross examination that it emerged that Mr Ager could not remember if he had passed his A Levels and had no academic qualifications. He had not even read a book on carbon credits.

It also came to light that his filing of sensitive information relating to court cases was not adequate as some was damaged by a water leak.

City of London police apologised in the wake of the case collapsing. A spokeswoman said: “This has been an enormously complex case of seven years’ duration. The case illustrates the significant change in the way fraud itself has evolved, along with our response in dealing with it.

Together with our colleagues in the CPS, we apologise that the evidential and procedural issues in the case have led to its dismissal.

Andrew Ager had been hired by the prosecution team in a trial of eight men accused of a £7m carbon credit fraud at Southwark Crown Court.

He ruled the men should be cleared.

In closing the case, the judge said: “Andrew Ager is not an expert of suitable calibre. He had little or no understanding of the duties of an expert. He had received no training and attended no courses. He has no academic qualifications. His work has never been peer-reviewed.”

Mr Ager was keen that his evidence should not be challenged and he felt threatened by the prospect of a far more impressive expert appearing in an area of expertise in which he hoped to continue making a living.

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The court room sketches were produced by kind permission of Priscilla Coleman © 2010 and has been published by Wildy, Simmonds & Hill Publishing Ltd ISBN 9780854900398.

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