Having extolled the virtues of experts a few weeks ago we have to return to a more critical tone this week. Inspired Education Online Ltd v Crombie was a dispute about the sale of a company that hit the headlines because of the rather lurid ‘banter’ exchanged (internally only) by staff. According to the Claimant this seriously reduced the value of the company and they wanted a substantial sum of money back. That necessitated  valuations of the “warranty false” value by experts, who had to estimate how much it would be worth if said emails became public knowledge and caused scandal.

 

Unfortunately the experts used fundamentally different methodologies leaving the court, as the judge commented “in the position of having to determine which of the experts is more credible – there is really no middle ground.”

 

She concluded, after a lengthy review, that the evidence of the Claimants expert had been fatally undermined by a range of issues, starting with instructions that made the valuation unrealistic, reasoning that was “alarmingly thin” and placing reliance on witness evidence that was obviously outside the witnesses’ knowledge.

 

However, a particular issue that will raise the hackles of other experts, as well as judges, was a failure to provide material that contributed to his report meaning that the other expert had no opportunity to consider it.

 

A section of his expert report covering the risks a company in the educations sector would be exposed to was based in part on information acquired from colleagues within his practice. However, as the judge commented said; “He did not provide any details of the “colleagues” he had sought information from, the transactions with which those colleagues had been concerned or the information he had received from them. He did not attempt to explain which aspects of his report had been influenced by these “internal enquiries” or whether his views on particular “risks” had been affected by them. He also did not appear to understand that this approach was quite obviously inconsistent with his duties as an expert and his expert’s declaration. He admitted that he had not shared the information derived from these internal enquiries with the Defendant’s expert because he did not regard the content of the information to be “controversial”, thereby showing a surprising ignorance of the importance of experts operating on a level playing field.”

 

It is easy to forget sometimes that other experts are colleagues to be respected rather than enemies to be overcome, especially if they hold radically different views. But the rules are there to make sure that both sides have a fair chance and it’s an important aspect of the expert role to at least make sure that you opposite number has access to all the information you have.  Perhaps the best approach whenever you decide to include or exclude something is to stop and ask yourself what you would need to see if you were on the other side and then act accordingly.

 

It may also be worth meeting up with other experts more often to remind yourself that we’re all on the same side. The Academy holds regular member meetings and social events for just that purpose including our President’s Dinner and taking part in the London Legal Walk.