The High Court ruling against Danish tax authority SKAT in a £1.4 billion dividend tax fraud case has been widely reported, not least because the judge concluded that SKAT’s controls on the transactions involved were so flimsy as to represent the equivalent of a ‘help yourself’ sign outside a bank.

 

Less attention has been given to the judge’s criticisms of the experts who appeared on behalf of the many parties involved. As he put it “ All three experts, in differing ways, did not provide properly balanced written reports”.

 

Perhaps the clearest example was SKAT’s expert “whose written work was argument rather than expert evidence” showing the dangers of working closely with a client and legal team on complex, long-running litigation. The judge concluded that “he finds it difficult not to think and express himself as an advocate for SKAT’s position. He has, I think, lost detachment from the partisan interests of SKAT” and was unable perhaps to hear any ‘evil’ in his client’s case.

 

Somewhat less concerning was an expert whose testimony was careful but tended to obscure his views and maximise differences with other experts that were not a pronounced as appeared at first glance.  As the judge observed, “That exposed him to a cross-examination that should have been largely unnecessary to confirm the extent to which, in substance, he agrees with a range of matters on which SKAT relied. “ Fortunately he appears to have dealt with that cross-examination impressively, fairly (with balance), and with an obvious depth of thought and expertise. A better approach might have been to write a report that allowed the parties to see more clearly.

 

And finally, the third expert’s generally much better approach (once his reports had been edited to remove contentious factual matters that should not have been there!) and thoughtful and fair answers to questions were undermined by his taking a view in the witness box that he had not expressed in writing.  The judge concluded that his interpretation of a key terminology expressed in oral evidence “had not been his view at any material time. It was inconsistent with the views he had expressed in writing, including in his primary expert report in these proceedings, to which he had to proffer alterations when called to give his oral evidence to advance the different view. “  While the case did not turn on this point the judge made it clear that speaking out in this way, because his written views in fact assisted the other side, was not acceptable and did the expert no credit.

 

The message to experts should not be a surprise, no client’s case is perfect and there are times when your views will not support their case. When that happens it is critical that you make sure your client’s hear you, that the court can see hat your views really area and that when you speak you keep your duty of independence firmly in mind.

Anyone considering acting as an expert needs to understand that environment,  the rules that apply to expert evidence and how to avoid the pitfalls that can lead to a difficult time in court and potentially public criticism from a Judge.

The Academy’s training programme is designed to help already  skilled professionals through the basic foundations to a mock cross-examination to ensure that they are fully prepared. Our training courses are primarily delivered online but we run some face to face courses  in London and Hong Kong. We can also run in-house training for larger consultancies, please contact us for details.