Fans of the late, great Steve Wright will remember the amusing and amazing factoids that peppered his afternoon radio show. But ‘factoid’ also means something that is repeated or believed but isn’t actually a fact.

Experts of course need to make sure they only deal with established facts and make it clear when there are disagreements or doubt over the status of the assumed facts that underlie their evidence.

Two recent cases have pointed up the need for care in this area.  In Toppan Holdings Ltd & Anor v Augusta/Simply , a case involving defects in the design and construction of a care home, expert accountancy and valuation evidence was required. Unfortunately while all gave helpful guidance to the court as the judge commented the Defendant’s expert was “in greater difficulties because of the complete absence of any factual evidence advanced by Simply.  Many parts of his report were based upon assumptions which were speculative and not supported by any factual evidence.” His cause was also not assisted by the lack of any mention of defects in his report. When cross examined, “he agreed he should have considered the defects but could not explain whether it was a deliberate omission or “… whether I just missed this.  I don’t know.”  This was more than somewhat surprising given the case was principally about the impact the defects had on the value and profitability of care home.”

In Ruby Properties v  James Alistair Watt  a dispute about the sale and purchase of a pilot training school the accountancy expert was not provided with data from an account system or the accounts for the company. Instead it was a document prepared in part from an accounts system and partly from witnesses recollections and assumptions and without the original records being disclosed.  Once the witness had conceded that “the spreadsheet was very much his subjective assessment which he had done from “feeling,  rather than mathematically” the accountancy experts evidence was, as the judge put it had “no factual foundation”.

It is clearly difficult for an expert when a client failed to provide the information they need.  An expert in Australia demonstrated that the best way to deal with this issue is to explain the limitations of the evidence and the limitations that places on your report. In that caser the judge concluded that within those limitations the expert “was entitled to express significant concern as to the profitability and financial viability of the entities”  and that “the evidence enables the Court to have confidence in his valuation opinion”.

The moral of these stories is to be wary of incomplete or unsupported facts and make sure that you state any issues or limitations in your report. For advice and guidance on giving expert evidence, including our  Model Form of Expert’s Report and  practical advice and guidance on topics such as GDPR, Joint Statements, privilege and so on see the Academy’s Knowledge Hub.

ure is from The Guardian.