Zweite M/S “Philippa Schulte” Shipping GmbH v PSA Corp Ltd

How not to give Expert evidence

[2012] SGHC 135 TEDR Volume 17 Issue 3

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 Facts

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.

Meat Corporation Of Namibia Limited v Dawn Meats (UK) Limited

The independence of an Expert

[2011] EWHC 474 (Ch) TEDR Volume: 16 Issue: 1

The Facts

This involved an application by the Claimant, Meat Co against the Defendant, Dawn, to oppose an application by the Defendant to call a new expert witness. They wished permission to be refused on the basis that proposed expert was in possession of confidential and privileged information concerning the Claimant which they said prevented her from acting or continuing to act for the Defendant and because they said she lacked the necessary independence of an expert. It was agreed that the expert was a retired meat trader and had the appropriate qualifications to be a suitable expert in the case. That was doubly so given that both sides had tried to instruct her in the matter. The Claimant tried first followed by the Defendant. The Claimant’s managing director (who used to work for the Defendant) had contacted the expert in May 2010. A conversation took place between the pair and, at the time, she said she was expecting to hear from the Defendant with a view to engagement as a consultant. There were also several e-mails between the pair. Full details of the information shared between them were not made available within the Judgement but made available to the Judge to assist him in making his decision.


1. Did the fact the proposed expert possessed privileged and confidential information about the other party disqualify her from acting as an expert?

2. Did the proposed Expert lack independence?

The Decision

Privilege and confidentiality

It was not contested that the expert had been given some privileged and confidential information. However, His Lordship did not agree with the Claimant that the expert ought to be treated in the same way as perhaps a solicitor and client would be treated if there had been a previous engagement that had Lordship’s conclusion was that the expert had only received the information in the course of enquiries as to whether she would “that does not rob it of its confidential quality, but it does mean that the relationship between her and Meat Co is very different from that of an engaged solicitor and his client”. He observed that to some extent the information had been forced upon her and whilst she could have refused to receive the information it was not appropriate to equate her with the sort of relationship of a solicitor and client. Overall His Lordship considered that, whilst confidentiality and privilege must be maintained, an undertaking by the expert she would maintain privilege and confidentiality would be sufficient. Overall His Lordship did not think that her deciding to act for the Defendant meant that she would betray confidences she had received and that it was a matter for her to decide what to do.

Further, having reviewed the e-mails and privileged information he considered that much of it would be uninteresting to the Defendant in any event and, as observed above, the undertaking would prevent her disclosing it.

Overall whilst previous cases have suggested that the practical approach was for the expert to refuse to act for both sides thus leaving the solicitors with the sensible course of action of seeking alternative experts, that did not automatically follow and the expert was not automatically disqualified. Overall therefore Mr Justice Mann considered that the expert was not disqualified from acting as an expert by virtue of her receipt of privileged and confidential information in this particular case.

Lack of independence

The second limb of objection was that the expert lacked the necessary independence. The Court set out the principles which were conveniently set out by Mr. Justice Nelson in Armchair Passenger Transport Limited v Helical Bar PLC [2003] EWHC 367 as follows:

i) It is always desirable that experts should have no actual or apparent interest in the outcome of proceedings.

ii) The existence of such an interest, whether as an employee of the parties or otherwise, does not automatically render the evidence of that proposed expert inadmissible. It is the nature and extent of the interest or connection that matters, not the mere fact of the interest or connection.

iii) Where the expert has an interest of one kind or another in the outcome of the case, the question of whether he should be permitted to give evidence should be determined as soon as possible in the course of case management.

iv) The decision as to whether an expert should be permitted to give evidence in such circumstances is a matter of fact and degree. The test of apparent bias is not relevant to the question of whether or not an expert should be permitted to give evidence.

v) The questions which have to be determined [are] whether (i) that the person has expertise; and (ii) he or she is aware of their primary duty to the Court if they give expert evidence and willing and able despite the interest or connection with the litigation or party thereto, to carry out that duty.

vi) The judge will have to weigh the alternative choices openly if the expert’s evidence is excluded, having regard to the overriding objective of the CPR.

vii) If the expert has an interest which is not sufficient to preclude him from giving evidence the interest may nevertheless affect the weight of his evidence.

His Lordship also applied one qualification of his own in that he was of the view that sometimes it would not be possible to determine with any clarity whether there was any disqualifying connection between the expert and the party at an interlocutory stage. Whilst of course it is desirable to do so, he would not rule out the prospect of having to decide the point at trial if necessary. Overall, the conclusion is that whether or not an expert is disqualified by reason of a connection with a party will depend upon the facts of the case and not on a single issue such as whether there is some contractual relationship between the two. The status of being an employee does not automatically disqualify a person acting as an expert and therefore it is difficult to see why the status of a consultant with limited functions would either.


Clearly, issues such as the above can be raised by the legal representatives at the interlocutory stage in the case. However, they are also issues that can be raised in cross examination during the trial for determination then. It may therefore be thought by experts that, professionally, they wish to decline instructions on the basis that there may be a conflict of interest or that it may result in difficult cross examination at trial even if ultimately there is no such conflict.

Conflicts of Interest

TAE Guidance on Conflicts of interest

Contact Us