Introduction

This is an interesting case for several reasons. First, it represents a comparatively unusual example of a forum conveniens argument about whether a trial should take place in England or in Ethiopa where all the facts were disputed. Normally these applications are decided in a matter of hours, on paper and without live evidence. Not so here. That raises the second issue; expert evidence, in this case on Ethopian law.

Under English law, the proper interpretation of foreign law is a matter of fact, and thus dealt with by way of expert evidence. But there are significant dangers. First, finding an expert in the relevant foreign law can be very difficult, particularly if the law in question is of a far-flung, exotic jurisdiction. The quality, experience and qualifications of the available experts sometimes seems to vary widely. Perhaps more importantly, even if the judge is not on his “home turf” with the foreign law in question, he nevertheless naturally feels pretty comfortable navigating his way around, and interpreting case law reports and statutory rules. Any diffidence that a judge might naturally feel towards an expert tends to disappear if the expert is dealing with questions of law, even if that law is foreign.

The Issues

The facts of the case are not directly relevant to TEDR readers. What is important is the way that the judge’s views on the Claimant’s expert, Mr Jones (a) demonstrates some of the traps that experts can easily fall into and (b) just as importantly, demonstrates how the legal team can unwittingly throw an expert to the wolves by lack of preparation, and how important it is for experts to ask for help.

The judge’s comments on Mr Jones largely speak for themselves:

“The problem with Mr Jones was that he was an inexperienced expert witness. He had never given evidence before in any jurisdiction. That was known to the Claimants’ lawyers. Despite that no attempts were made to assist him in the giving of evidence as an expert in that regard.”

That was of course primarily the fault of the lawyers, who should have prepared him better. But it is also at least partly Mr Jones’ own fault. It is important that an expert who feels he is out of his depth (or even one who ought to realise he’s out of his depth) to ask for guidance or assistance (e.g. on issues of procedure, or presentation of a report). That does not compromise an expert’s independence; the expert’s first duty throughout is to assist the court. All it means is that if he is not sure how he can best do that, he should ask.

“It is plain that he did not understand his duties as an expert to the Court and as will be seen in my detailed analysis in the confidential judgment he repeatedly strayed into the argumentative. Further he made strongly worded criticisms which were simply not sustainable on the thought processes in his report and this was cruelly exposed by Mr Spink QC in his thorough and comprehensive destruction of him as an expert witness.”

Ouch!

A couple of points obviously arise here: First and most obviously, Mr Jones needed to understand his duty to the Court before he could stand a realistic chance of getting anything else right. His legal team should have drilled this into him from the start, and if they didn’t, and as a result he was not sure as to what his role was he should have asked for some help – see above;

Mr Jones was argumentative. This demonstrates how easily it is to slip from a robust defence of a theory of the case into advocacy. It comes from a lack of preparation, a lack of experience, and/or a failure to understand the nature of expert evidence. Argumentative witnesses are rarely, if ever convincing;

Lastly, Mr Jones seems to have “led with his chin” by peppering his written report with express criticisms of the other side. This is a dangerous tactic for an expert. First, even if the criticisms are justified, this approach can easily look like advocacy, rather than expert analysis, which will deprive the report of much of its persuasive force. Secondly, the position is obviously even worse if the criticisms cannot be sustained. As the judge remarked, it gave opposing counsel the material to work Mr Jones’ “comprehensive destruction.”

The judge went on to say this:

“… Mr Jones simply did not understand his role as an expert witness … he did not understand the consequences that might flow personally to him if he gave evidence which I found to be reckless or negligent. The reason for this was once again he had not properly been assisted by the Claimants’ lawyers in respect of his evidence … Mr Jones was blissfully unaware of the potential consequences … Mr Jones was labouring under difficulties which were caused by his lack of understanding of his duties and the consequences of a finding that he broke his duties. The fault for this lies entirely with the Claimants’ lawyers … Mr Jones did not understand how he should give his evidence and the consequences if he failed to give his evidence in a proper way.”

This is a clear allusion to the recent loss of expert witness immunity in Jones v Kaney. Expect more of this kind of thing to feature in judgments as time goes on. Note again that the judge is very clear in saying that the fault for this lay primarily with the legal team, who (as the judge said elsewhere) appear to have thrown Mr Jones to the wolves, so little preparation did they give him.

“The difficulty was that Mr Jones clearly had something [of] worth to say. He was honest in his evidence, but his answers were coloured by his clear desire to argue the case on behalf of the Claimants and his lack of training as an expert. The exercise of stripping away the irrelevancies in his reports to find something of worth was very time consuming … I do not believe he was negligent or reckless; it was simply that his evidence was not good enough.

Conclusion

This case emphasises the importance that judges place on clear, well written reports, that only go directly to the issues, and to experts who understand their role and how to give evidence when in the box. The key to giving both good written and good oral evidence is preparation; to understand the case, work out what is essential and what is not, and to give focused, fair and independent answers to those key questions. Mr Jones did not have the training or the experience to do that. It appears to have cost his clients (and nearly cost him personally) very dearly indeed.

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.

Comments

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.

The Facts

The facts surrounded a catastrophic fire which destroyed the Claimant’s large confectionery factory in Pontefract. The issues surrounded the Defendant’s supply of a CO2 fire suppression system for the popcorn machinery where the fire broke out. It is not necessary for our purposes to dwell on the facts further.

The parties were both given permission to call two experts each, one in fire suppression systems and one in relation to forensic fire investigations. There was also permission given to the Claimant to serve additional expert evidence from an architect specialising in requirements for fire protection and safety in building construction and the spread of the fire. It is worthy of note at the outset, the latter expert escaped any criticism whatsoever from the Judge. The same cannot be said of the other experts.

At the first CMC in the case the parties were ordered to agree preliminary lists of liability issues to be considered and discussed by those experts. The parties failed to comply with that direction and no lists were prepared. At the second CMC the Judge ordered that the list be agreed so the experts could meet without prejudice and prepare a joint statement setting out matters upon which they agreed and disagreed. Those reports were ordered to be served together with, at a later stage, any supplemental reports necessary from those experts. Once again the parties and/or the experts did not agree a list of issues and no joint report was prepared. The Court was simply told that the experts had fallen out and therefore no statement could be prepared.

The Court gave some lengthy guidance arising out of its criticisms of the conduct of the four experts in the case.

Guidance

Firstly Mr Justice Coulson said that, “the experts appointed in civil litigation have no business to ‘fall out’ and to fail to comply with the orders of the Court. Experts are there to provide evidence on technical other purpose. If they take matters of personal disagreement to such level, they are failing to provide that service.”

Because there had been no joint report prepared, at the commencement of trial, the parties sought permission to allow each of the four experts mentioned above to provide an oral presentation to the Court. The Judge commented as follows, “it quickly became apparent to me that these presentations were designed to allow in to evidence a variety of disparate matters, some of which were not even in the extensive reports produced by the four experts in question. These presentations amounted, therefore, to a third attempt on the part of the experts to express their opinions.”

The joint statements were not in fact produced until part way through the trial. The Judge commented that, “unfortunately, they were of little or no use, because they were not focused on the issues between the parties. Instead, they operated as a sort of summary of some of the technical differences between the experts, often un-linked to the particular matters of important which I have to resolve.”

The Judge then set out his particular criticisms of each of the four experts in turn.

The Claimants’ fire expert

The Claimants’ fire expert had been called in to deal with the fire on behalf of the Claimant’s insurers within days of the fire itself. The principal problems with the evidence of this expert were found to be as follows:-

a) He failed to disclose his original report or notes which would have been prepared at a time when he had investigated the physical remains of the building and interviewed those who were there, advantages which no other expert had;

b) He relied on unsophisticated tests which made no attempt to replicate the conditions in the oil production area on the night of the fire;

c) He adopted an unacceptably partisan approach, particularly in his attempt to contextualise another report;

d) He failed to agree and/or carry out any joint testing with any of the other experts;

e) He failed to set out his theory as to fire spread in a coherent and comprehensive fashion. He was also criticised for changing his mind in a report then failing to explain why he did so.

The Defendant’s fire expert

He came in for criticism for having allowed students at Edinburgh University to carry out some testing which was relevant to his report. Apparently, no information about the tests had been disclosed other than the short summary given in the report which came from a blog taken from the internet which had been written by one of the students whilst they were doing the tests. There was apparently a video of the tests available but it had not been disclosed to the Claimants or the Court even at the time the Judgement was prepared. The tests were of course carried out unilaterally so were of no assistance to the other parties.

The Claimants’ fire suppression systems expert

His report was said to be inordinately long at 76 pages but failed to deal in any cogent way with the only issue on which the evidence could have been helpful. With regard to his supplemental report it was said to be a “paragraph by paragraph critique of Mr Jackman’s report, in which any semblance of the wood had been completely obliterated by the trees”.

The Judge further criticised this report and subsequent oral evidence for failing to get a grip of the real issues in the case. He commented that the report seemed to be operating on the basis that if the opposite experts said ‘x’ he should say ‘y’ no matter whether the issue was relevant or not. In terms of oral evidence, this was said by the Judge to have “degenerated into bad tempered bickering”. He criticised the witness for repeatedly failing to answer questions put to him and being unwilling to make even the most basic assumptions in order to answer the questions being asked.

The Defendant’s fire suppression system expert

He came in for criticism because his report was taken up with criticisms of the Claimants which did not apparently form any part of the pleaded allegations of contributory negligence so were irrelevant and inadmissible. The testing that he had used was not fully explained in his report and the Claimants had been engaged in trying to elicit information about them to allow them to complete their own expert evidence.

Having completed a précis of the criticisms, the Judge outlined what should have happened.

The Judge stated, in terms that firstly a list of issues should have been agreed between the solicitors to form an agenda for the experts meeting. Secondly, those meetings ought to have occurred and a joint statement ought to have been prepared. That would have been in accordance with the original Court Orders. He stated that if there had been a problem the parties should immediately have come back to Court for help. He criticised the experts for not conducting their meetings properly and in a way which would have revealed that further testing/ experiments were necessary. A programme for those tests in his view should have been drawn up and they should have been planned and carried out either jointly or at the very least in the presence of everybody.

Had matters been dealt with in this way the issues would all have been dealt with to enable the trial to run smoothly. Instead the Court had to struggle with, “unsatisfactory and disparate expert evidence, often unrelated to the real issues, prepared and delivered in a variety of places and in an acceptably partisan way. Unsurprisingly, perhaps, this has created real difficulties in the preparation of parts of this Judgement. It has also led me, very unusually, to be dubious about the reliability of all the expert evidence that has been presented to me. This is emphatically not a case where the Court is able to prefer one expert over another and let that approach dictate the result”.

Comment

The case should serve as a salutary lesson to all experts that they must bear in mind their Part 35 duties and take them seriously to assist the Court. I would suggest that no one wants their name associated with such a judgement.