How not to give Expert evidence
This is a case from the Singaporean High Court. It is reported in this issue because it gives some very good examples as to how experts should not approach their duties to the tribunal. In this case, both of the claimant’s experts came in for very severe, albeit evidently deserved, criticism.
The dispute concerned a container vessel, The APL Sokhna. The plaintiff alleged that the defendant had negligently dropped a hatch cover, damaging it and damaging the vessel.
The plaintiff called two expert witnesses in support of its theory of the case that the hatch was damaged by the defendants negligence. The first was a Captain Jonathan Lee. The trial judge described him as “rather unhelpful.” In particular, the judge noted that:
Capt Lee’s report to the court did not set out all the issues which he had been asked by the plaintiff’s to give evidence on, despite that being required by the relevant rules of court.
When Capt Lee was asked about that by the defendants, he could not provide an answer.
Capt Lee had not inspected the gantry crane, the spreader, the lifting sockets or even the hatch cover itself. He had not even asked for the relevant measurements.
Instead, Capt Lee conceded in cross-examination that he had depended on the reports made available to him, and the photographs attached to the witness statements.
Astonishingly, Capt Lee admitted in cross-examination that he had simply selected those parts of the witness evidence that supported the plaintiff’s case in order to form his “independent and objective” views.
Although pressed repeatedly and at length, he could offer no explanation as to why he preferred the plaintiff’s evidence over the defendant’s.
Unsurprisingly, the judge held that he had “no doubt whatsoever” that Capt Lee did not assist the plaintiff’s case. If anything, the plaintiff’s second expert, Dr Skyes was even worse. Indeed, the trial judge described his evidence as “calamitous.”
Although put forward as a metallurgist and material scientist, Dr Sykes did not carry out any metallurgical tests on the hatch cover to exclude the possibility that defects in the hatch, as opposed to negligence, had caused the damage.
Dr Skyes was discovered in cross-examination to have formed an opinion on the cause of the accident more than 2 years beforehand in a separate report to the P&I Club, but he had failed to disclose that in his report to the court.
Dr Skyes failed to disclose to the court that he had had relevant discussions with the Claimant about how to approach the cause of the accident back in 2009.
Having formed a view back in 2009, Dr Skyes failed to carry out any new tests or consider any other evidence that might have challenged his original report to the P&I Club.
Dr Skyes’ report to the court was simple a re-hash of his 2009 report, despite the fact that in 2009 he had expressly not been asked to look at the issue of causation that was central to the trial.
Dr Skyes based his conclusions at least in part on evidence as to “load of force” which was not mentioned in his report.
Unsurprisingly, the judge dismissed the plaintiff’s claim.
The plaintiff’s experts in this case seem to have got almost everything wrong. Since the introduction of the Civil Procedure Rules in England & Wales in 1999 and the mandatory requirements of CPR 35 as to what is expected of an expert, it is fortunate that judges in this jurisdiction are rarely presented with expert evidence that suffers from so many shortcomings. However, there are important lessons to be learnt from this case for experts everywhere, or at the very least reminders as to how not to approach matters. In particular, it is very often the case that, like Dr Skyes, experts will be asked to produce reports on issues for use in court when they have a long-standing prior involvement in the case. That does not disqualify the person involved from acting as an independent expert to report to the court, but it does mean that they need to be very careful to approach matters afresh when they give their evidence.