Our forensic team have written an article following a recent High Court judgement.
Complying with our duty to the court is of paramount importance when acting as an expert witness for clients in legal proceedings. A recent High Court decision (The Governors and Company of the Bank of Ireland and another v Watts Group PLC  EWHC 1667 (TCC)) highlighted this point and set out the risks associated with experts who do not comply with their duty to the court. Experts should assist the court by providing objective, unbiased opinions on matters within their expertise.
The court concluded that in this case the written and oral evidence of the claimant’s expert quantity surveyor (“V”) was unreliable, and that the evidence of the defendant’s expert should therefore be preferred where there was disagreement between them. The court’s reasons for this included:
- V was not, the judge considered, a properly independent witness, as the claimant was his principal client, providing the vast majority of his work and fees. With the volume of cases being brought against some financial institutions at present this is a real problem – we are aware that some banks refuse to work with experts who have acted for claimants. We work for both claimants and defendants and consider this approach provides balance to our reports as well as enabling us to act as an effective devil’s advocate.
Tackling a problem with an understanding of the perspective of both claimants and defendants is crucial to maintaining independence. Experience as a single joint expert is hugely beneficial here, as the SJE has to give his/her opinion and pre-empt any challenges that may be made from either party prior to issuing a report.
- V’s criticisms of the defendant were based on an unrealistic expectation of what the defendant was required to do, and the length and number of V’s reports showed V was prepared to go to great lengths to defend his client’s case. It is crucial to make sure the work undertaken is proportionate and reasonable given the circumstances of the case – there is no point using a sledgehammer to crack a nut (and excessive costs might not be recoverable either).
Whether in relation to claims of negligence or not, each case must be assessed by reference to the parties involved and the actions normally expected of an individual or business in that situation. For example, it is unrealistic to expect a two man partnership to have comprehensive corporate governance in place or to expect a plc to make decisions without a formal business case or documented consideration of an issue.
- V had also applied the wrong test for negligence, substituting the approach he would have taken, and the result he would have reached, rather than considering what a reasonably competent monitoring surveyor would have done in the circumstances. This must be the most fundamental criticism in this instance – if the expert adopts the wrong approach it will be difficult for a judge to consider the opinions given in any meaningful way.
- V had attempted to mislead the court with a selective quote from RICS guidance. It is important to understand and consider all professional guidance and other relevant information when acting as an independent expert, and to present it (where relevant) in a complete and unbiased manner. If there are reasons that part of the guidance is not considered to be applicable it is really important to explain this and address it face on rather than hoping it won’t be noticed. To do otherwise is contrary to an expert’s duty to the court and suggests bias.
- V had adopted an unreasonable approach, failing to make concessions at the experts’ meeting and when giving evidence. In our experience, this undermines the creditability and independence of any expert but, strangely, is still widely prevalent. It is highly likely that some concession may need to be made when an alternative view is presented, even if an alternative interpretation of the facts needs to be considered in order to do so. An obstructive attitude can also increase both parties’ costs.
Sometimes an expert will hide behind their instructions. For example, in one instance we were faced with an expert who agreed with our choice of exchange and interest rates (something clearly within an accountant’s area of expertise) but refused to formally agree in the joint statement as his/her instructions specified the exchange rate to be adopted. The phrase “but my instructions are different” became frustratingly familiar.
It is well known that failing to maintain independence can actively harm a client’s position as an opposing expert’s evidence is likely to be favoured in areas of disagreement. Some instructing solicitors are known to put pressure on the expert to provide (or omit) certain opinions from the report and knowing when to resist this pressure (and how to do it whilst maintaining relationships) is a valuable skill.