Experts in the dock – Recent criticisms of expert evidence

by Bart Kavanagh

In three recent cases, ICI v Merit, [1] Riva v Fosters, [2] and Energy Solutions v NDA, [3] Sir Peter Fraser, who was recently designated as the Judge in Charge of the TCC, has criticised the provision of expert evidence.

In ICI v Merit Fraser J was critical of the way in which one of the experts: argued his client’s case; dealt with issues of fact and law; interpreted the contract; and failed properly to consider factual witness evidence. He was critical also of the joint statement produced by the experts, saying that he found it “… a most unhelpful document.”

“The Joint Statement essentially amounts to a recitation of each expert’s view, with the occasional exception where a minor item was in fact agreed. However, such items are few and far between.”

The judgment goes on to consider certain agreements that were made between the parties’ surveyors during the course of the works and Fraser J criticises the expert’s approach to these:

“[The expert] chose entirely to ignore these agreements and by doing so took a position on what is an issue of fact and law for the court, that it is not within the sphere of an expert witness to do. Nor did he simply ignore the agreements altogether. On some issues, he mounted arguments positively in ICI’s favour against those agreements being applicable.”

He was critical also of the way the expert dealt with a matter of fact and law regarding the method to be adopted in valuing the works, noting that the expert:

“… made it clear that he had adopted a different method of valuation to that included in the contract, and agreed by the parties, because he felt that to use the correct contractual approach would result in MMT being paid more money than it ought to have been.”         

And stating that:

“It is not acceptable for an independent expert to decide that it is the correct approach to the contract, and wholly ignore the other approach – in other words, to decide for himself (and put some effort into persuading the court) that this was the correct interpretation.” 

The approach of the same expert to factual witness evidence was also critically scrutinised:

“There was factual evidence from MMT’s witnesses that the majority of the steelwork (…) was outside the building. [The expert] refused to accept this, and said this was a “common misconception”. Given MMT’s witnesses (…) were witnesses of fact and had been involved at the time, it is a surprise to me that [the expert] believed himself to be in a better position than either of them on matters of fact, or saw fit “not to agree” with their factual evidence on matters of fact.”         

as was his preference for his own view over contemporaneous documents:

He took a view on most things, preferring his own even to other contemporary references, even those from the Project Manager. For example on preliminaries, when something [the project manager] had stated in a contemporaneous document was put to him, he said “That’s what [the project manager] is saying. I must admit I would have formed a different view — have formed a different view by looking at the documents.”

In Riva v Fosters the issues regarding the experts were largely to do with their inexperience as experts, although both were highly experienced architects. For example, one of the experts:

“… had not included the CPR Part 35 declaration in his report at all, which is a mandatory requirement and which was corrected by him overnight.”

This inexperience showed itself also when dealing with matters of fact:

He also did not really appreciate the correct approach to disputed evidence of fact, which can present some challenges for an inexperienced expert witness who must (of course) not decide which version of the facts they prefer.

[The expert] said he had simply disregarded facts that were controversial. This means that considering alternative opinions depending upon the facts did not arise in the conventional sense.

Whilst criticising the expert for straying into legal territory by providing his views on causation, Fraser J implicitly criticised his instructing lawyers by acknowledging that the instructions to the expert had encouraged this.

He gave his extensive views on causation, which matters do not require expert opinions, qualifications or analysis and which are matters for the court. Such evidence from an expert is inadmissible. This was not entirely his fault, however, as the questions he was asked could potentially have been interpreted as inviting this.

In contrast to the experts in ICI v Merit, and despite his own admonishments, Fraser J “… found both the experts of great assistance.”

“… it was clear to me that both experts were doing their best genuinely to assist the court, and both realised that they had to be independent of the party that had instructed them.

Their Joint Statement was also very useful. Both architects agreed that the Fosters’ Scheme could never have been value engineered down to a value of £100 million.”

In Energy Solutions Fraser J detected the effects of witness coaching and disparaged the results.

[The expert] adopted a style of giving evidence that became increasingly common throughout the trial for the majority of the witnesses for Energy Solutions.

This was, at times, to avoid the question and embark upon something of a corporate presentation. The linguistic device adopted for this approach was, usually, to state that it was necessary to put a question “in context” and then embark upon an exposition that was essentially sketching out the Claimant’s case, and avoiding giving a clear answer to sensible questions from [counsel]. I found this increasingly unhelpful.

Conversely, at a subsequent hearing for which there had been little time for preparation, he found the evidence given by the same witness:

“… to be far more persuasive than it had been during the trial in November 2015. Perhaps the lack of time for extensive preparation, or witness training, was a good thing. Certainly where before there had been long pauses, requests to put matters “in context”, careful consideration of questions and equally careful non-answers, on 26 July 2016 he answered promptly, candidly and openly, and I found what he had to say wholly convincing.

It is not clear whether these comments reflect isolated incidents or provide a snapshot of the current general standard of expert evidence in the construction industry; perhaps under the influence of the rougher world of adjudication. Either way, these judgments should remind experts not to become complacent and should put them, and those who instruct them, on notice that the court expects, and will demand, rigorous adherence to the requirements and standards that are set out clearly in CPR Part 35.

[1] ICI v Merit Merrell Technology [2018] EWHC 1577 (TCC)

[2] Riva Properties and Ors v Foster + Partners [2017] EWHC 2574 (TCC)

[3] Energy Solutions EU Ltd v Nuclear Decommissioning Authority [2017] UKSC 34

…………………………………………………………………..