The Expert in Court
This article looks at two recent cases involving experts and disputes. The first case relates to an expert engaged in litigation; the second relates to a challenge to an expert determination.
BDW Trading Limited and Integral Geotechnique (Wales) Limited [2018] EWHC 1915
A surprising mistake?
The case involving BDW Trading related to a professional negligence claim brought by a national housebuilder against a firm of consulting engineers in respect of asbestos which was found on a residential housing site. The technical points within the case are unlikely to stir our curiosity. However, this case focuses a light on some of the responsibilities of the court-appointed expert. Along with significant power comes a commensurate burden of responsibility.
As might be expected, consulting engineers were instructed to give expert evidence to the parties. A very experienced engineer with a specialism in geotechnical engineering was instructed by the Defendants as an expert. As well as experience as a consulting engineer, the expert also had considerable experience in acting as an expert witness.
Surprisingly, for someone with this background and experience, he had sent a draft of the joint statement of experts to his instructing solicitors. He had then made some changes to the draft, based on feedback from the solicitors.
The Judge described this as a serious transgression.
The code
The requirements are that the legal advisers must not be involved in either negotiating or drafting the experts’ joint statement.
Legal advisers should only invite the experts to consider amending any draft joint statement in exceptional circumstances where there are serious concerns that the court may misunderstand or be misled by the terms of that joint statement. In such exceptional circumstances the concerns of the legal advisers should be raised with both experts involved in the joint statement.
The expert
The Judge stated that he found the evidence of the relevant expert in the main to be balanced and realistic, and that he tended to accept his views.
The other side remained suspicious of the expert who was described by them as a “hired gun”. We are left in doubt as to whether this was due solely to his transgression with the joint statement or if there were other reasons for their concern.
It appears that the expert delivered a polished presentation in the witness box: he was described by the Judge as an experienced and persuasive expert. The Judge was sufficiently concerned by the label of “hired gun” that he re-read the transcript of his evidence in order to satisfy himself that he did not cross the line into inappropriate advocacy or partisan evidence.
The judgement
The transgressions by the expert did not impact adversely on the judgement – the Judge found that the defendant firm had not been negligent in the work which they had undertaken.
Ms Lindsay Joseph and LEBC [2018] EWHC 876
We can all recognise that the Courts are slow indeed to overturn expert determinations; in this case one of the parties cited Morgan Sindall and Sawston Farms:
"The whole point of instructing a valuer to act as an expert (and not as an arbitrator) is to achieve certainty by a quick and reasonably inexpensive process. Such a valuation is almost invariably a non-speaking valuation, with the expert's reasoning and calculations concealed behind the curtain. The court should give no encouragement to any attempt to infer, from ambiguous shadows and murmurs, what is happening behind the curtain."
Initial or renewal commission
This case related to an independent financial advisory business which specialised in health insurance. A national accountancy firm was appointed to produce a determination of the value of the Company; this in turn determined the bonus payable to Ms Joseph. The firm prudently sought several rounds of representations from the two parties, both of which had undertaken to provide the relevant information.
There was a significant difference in the representations made regarding the levels of renewals of the health insurance policies. The experts finally satisfied themselves with the information provided; they issued a non-speaking determination and stated that the entire share capital had a value of an exquisitely precise £293,538.
Another national firm was engaged by Ms Joseph and maintained that the value should be more fairly stated at £1,088,000.
Strike-out and abuse of process?
LEBC felt confident behind the impenetrable barricade of a non-speaking valuation; from that vantage point they attempted to have the litigation swept away.
Feeling impregnable, LEBC did not recognise that there was a gap in their wall: Ms Joseph was able successfully to argue that they had not provided the necessary information to the expert valuers.
The Judge was able to distinguish the point: Ms Joseph was not arguing that the judgements within the determination were in error; she argued that the business valuers had not been provided with the appropriate information by LEBC.
Comment
We can all recognise that those engaging in a determination will generally be bound by the outcome, but only on the terms to which they agree to be bound. In this case the two parties had undertaken, within the determination, to provide the relevant information to the valuers. This was what LEBC had failed to do.