How not to give Expert evidence

The drafting of Experts’ reports

[2011] EWHC 1669 (pat) TEDR Volume 16 Issue 2

The Facts

This case concerned an action by the Claimant against the First Defendant for an alleged infringement of a patent. Technical expert evidence was thus required.

The Issues

The Court discussed and gave guidance upon the instruction of expert witnesses, particularly in complex cases such as patent cases.

The Guidance given

Mr. Justice Arnold commenced by setting out the salient sections of CPR Part 35 and the Practice Directions. These included.

Experts – overriding duty to the Court

35.3

(1) It is a duty of experts to help the Court on matters within their expertise.

(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they get paid.

Contents of the report

35.10(1) An expert’s report must comply with the requirement set out in Practice Direction 35.

(3) The expert’s report must state the substance for all material instructions, whether written or oral, on the basis of which the report was written.

Practice Direction 35 – Experts and Assessors:

2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.

2.3 Experts should consider all material facts, including those which might detract from their opinions. The Practice Direction also sets out the following requirement for the form and content of the expert’s report:

3.1 An expert’s report should be addressed to the Court and not the party from whom the expert has received instructions.

3.2 An expert’s report must:

(3) Contain a statement setting out the substance of the facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based;

(4) Make clear which of the facts stated in the report are within the expert’s own knowledge;

(5) Say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert’s supervision;

(6) Where there is a range of opinion when the matter is dealt with in the report –

a) Summarise the range of opinions;

b) Give reasons for the expert’s own opinion;

(7) Contain summary of the conclusions reached; The protocol for the instruction of experts to give evidence in civil claims (emphasis added):

2. Aims of Protocol

2.1 This protocol offers guidance to experts and those instructing them in the interpretation of and compliance with Part 35 of the Civil Procedure Rules (CPR 35) and its associated Practice Direction (PD) 35 and to further the objective of the Civil Procedure Rules in general. It is intended to assist in the interpretation of those provisions in the interests of good practice but it does not replace them. It sets out standards for the use of experts and the conduct of experts and those who instruct them. The existence of this protocol does not remove the need for experts and those who instruct them to be familiar with CPR 35 and Practice Direction 35.

3. Application

3.3 Experts, and those instructing them should be aware that some cases may be “specialist proceedings” (CPR 49) where there are modifications to the civil procedure rules. Proceedings may also be governed by other protocols. Further, some Courts have published their own guides which supplement the civil procedure rules and proceedings in those Courts. They contain provisions affecting expert evidence. The expert witnesses and those instructing them should be familiar with them when they are relevant.

4. Duties of experts

4.1 Experts always owe a duty to exercise reasonable skill and care to those instructing them, and to comply with any relevant professional code of ethics. However when they are instructed to give or prepare evidence for the purpose of civil proceedings in England and Wales they have an overriding duty to help the Court on matters within their expertise (CPR 35.3). This duty overrides any obligation to the person instructing or paying them. The experts must not serve the exclusive interest of those who retain them.

4.3 Experts should provide opinions which are independent, regardless of the pressures of litigation. In this context, a useful test of “independence” is that the expert would express the same opinion if given the same instructions by the opposing party. Experts should not take it upon themselves to promote the point of view of the party instructing them or engage the role of advocates.

8. Instructions

8.1 Those instructing experts should ensure that they give clear instructions, including the following:-

(c) The purpose of requesting the advice or report, a description of the matter(s) to be investigated, the principle known and the identity of the parties.

In the light of the rules, the Learned Judge went on to consider the role of an expert witness particularly in patent litigation. He observed that in this particular field the experts would normally be scientists or engineers, who were frequently academics not experienced in giving expert evidence or in the patent system. For those reasons expert witnesses would require a very high level of instruction from the lawyers. Furthermore whilst experienced authors, they would frequently require considerable help from lawyers in drafting their report. Sometimes, lawyers would draft the reports and the draft would be duly amended by the expert. In terms of the lawyer’s role, they are required to understand what the expert says but in addition both parties need to frequently discuss the issues to allow the report to be prepared.

The Learned Judge continued that it had to be recognised that there is a risk of a loss of objectivity on the part of the expert, even though they were remaining independent and impartial. Lawyers needed to keep the requirement for the expert to remain objective at the forefront of their mind. If they did not they would be doing both the expert and their client a disservice because the expert could be subject to criticism during cross examination and in the Court’s judgement. A partisan expert would frequently be exposed in cross examination which could therefore reduce, if not eliminate, the value of the evidence to the client’s case.

Ultimately, the drafting of the report should not major upon the strong points of the case. It is still necessary for it to be a balanced account within the document upon which the witness will be cross examined. There should also be an awareness that the lawyers for the opposing party are likely to comb through the expert’s published papers and any other publicly accessible records in an attempt to find something of relevance to the issues that have not been disclosed by the expert in the report. The expert stands to be accused in cross examination of failing in his duty to the Court if it appears to favour the opposing party and it has not been made clear within the report itself.

There are very many cases in which judges have criticised expert witnesses for failing to be objective or in other ways. From time to time experts do succumb to giving partisan evidence which the judge observed was clearly unacceptable. However, the judge wished to re-emphasise that the lawyers who instruct expert witnesses bear a heavy responsibility for ensuring that an expert witness is not put in a position where he can be made to have failed in his duty to the Court even though he conscientiously believes that he has complied with that duty. The Courts should also be cautious about criticising an expert witness purely on the basis of omissions from his report unless it is clear the fault does lie with the expert rather than those instructing him.

The Conclusion

This case really reiterates the guidance that is given in the CPR to experts. There is nothing intrinsically wrong with a lawyer assisting an expert to draft the report upon the basis of the expert’s own evidence. However, both parties bear a very high duty to ensure that the report that is finally disclosed gives a fair and balanced account of what the expert actually means lest any omissions are exposed in cross examination to the detriment both of the expert and the lay client.

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.

 Issues

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.

Comment

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.

Medical experts reference and the consumer need for 2nd Expert

[2006] 1 FLR 543, [2005] EWCA Civ 1247 TEDR Volume 11 Issue 1

The Facts

The appellant parents (W) appealed against an order made in care proceedings brought by the Oldham Met Borough Councul in relation to their son. After the conclusion of the first limb of a “split” hearing, the judge had held that the son had suffered a non-accidental brain injury as a result of a shaking episode, that the injury had been caused by one of K’s parents, and that the threshold criteria under the Children Act 1989 s.31 were satisfied.

The judge relied on the evidence of a single expert in paediatric neuro-radiology and had dismissed applications by W to instruct a second expert. The local authority did not initially object to a second opinion being sought by the parents but did oppose the application when it became clear that the provision of that second opinion would delay the hearing.

The report of a second expert (when it was obtained) had expressed a clear and fundamental disagreement with the first expert and supported the parents’ case that their son’s injuries were not the result of any deliberate infliction of harm. In the circumstances, the parties had

agreed that the judge’s findings could not stand and that the case would have to be remitted to another family judge for re-hearing.

The Issues

In many such family cases it would be inappropriate to allow parents to obtain second opinions in respect of all the expert evidence. However, in certain cases, where medical evidence of non-accidental head injury or unascertained infant death became highly relevant, the courts would be slow to decline an application for a second expert, as that sort of expert evidence could not easily be taken issue with, without a further expert

opinion contradicting the first expert report in certain respects. Such a second opinion should normally only be permitted where the question to be addressed went to an issue of major importance.

In this case there had been no real consensus or agreement between medical practitioners in the proceedings because they had all “deferred” to the single expert. In that unfortunate context the parents were permitted to obtain and rely upon a second opinion on what was on any footing the major medical issue in the case, Daniels v Walker (2000) CILL 1629 was applied in reaching this decision. (2) The protocol for judicial case management in public law Children Act cases ((2003) 2 FLR 719) was stated to be sufficiently flexible to allow for the obtaining of a second opinion in suitable cases. It was emphasised that the potential requirement for a second opinion should be addressed and recognised and then actioned as early as possible in the case. (3) Where complex medical issues were being considered, the need for a second opinion on any critical medical issue in the case was particularly significant and the provision and due assessment of such a second opinion by the trial judge

would provide a final judicial decision based on firmer foundations than otherwise would be the case. (4) If an opinion on a significant issue in the case was given by an expert with a previous clinical role in respect of the child or children (and hence an argument of lack of independence

or objectivity might arise). this provided a further ground for having a second opinion if one was sought by or for the parents. (5) The guardian had a pro-active role to play so as to make sure that all the relevant evidence had been collected for the court to make an objective

and informed decision. If a guardian took the view that a second opinion sought by parents was properly necessary he should not hesitate to say so and hence should not endeavour to maintain a neutral stance at all times.

The Decision

In many such family cases it would be inappropriate to allow parents to obtain second opinions in respect of all the expert evidence. However, in certain cases, where medical evidence of non-accidental head injury or unascertained infant death became highly relevant, the courts would be slow to decline an application for a second expert, as that sort of expert evidence could not easily be taken issue with, without a further expert

opinion contradicting the first expert report in certain respects. Such a second opinion should normally only be permitted where the question to be addressed went to an issue of major importance.

In this case there had been no real consensus or agreement between medical practitioners in the proceedings because they had all “deferred” to the single expert. In that unfortunate context the parents were permitted to obtain and rely upon a second opinion on what was on any footing the major medical issue in the case, Daniels v Walker (2000) CILL 1629 was applied in reaching this decision. (2) The protocol for judicial case management in public law Children Act cases ((2003) 2 FLR 719) was stated to be sufficiently flexible to allow for the obtaining of a second opinion in suitable cases. It was emphasised that the potential requirement for a second opinion should be addressed and recognised and then actioned as early as possible in the case. (3) Where complex medical issues were being considered, the need for a second opinion on any critical medical issue in the case was particularly significant and the provision and due assessment of such a second opinion by the trial judge

would provide a final judicial decision based on firmer foundations than otherwise would be the case. (4) If an opinion on a significant issue in the case was given by an expert with a previous clinical role in respect of the child or children (and hence an argument of lack of independence

or objectivity might arise). this provided a further ground for having a second opinion if one was sought by or for the parents. (5) The guardian had a pro-active role to play so as to make sure that all the relevant evidence had been collected for the court to make an objective

and informed decision. If a guardian took the view that a second opinion sought by parents was properly necessary he should not hesitate to say so and hence should not endeavour to maintain a neutral stance at all times.

Comment

A very important case in the child welfare arena. It shows the dangers and limitations of single expert witnesses in certain cases. It also shows the significance of having a second opinion to enable the court to make a balanced and objective decision. The case made the point that it would be wrong to rule out opinions from those with previous clinical involvement as that involvement could provide for expertise and excellence to be passed on to the court – however the other side of the coin was that such involvement heightened the strength of the argument for a second opinion from an independent expert not involved in the previous clinical history of the case.

The Employed Expert and how to Overcome a Lack of Independence

[2007] EWHC 2245 (Ch) TEDR Volume 12 Issue 3

The Facts

The case involved the calling of both factual and expert witnesses to provide evidence and some witnesses who gave both factual AND expert evidence.

The Issues

The issues in the case arose out of the agreement for, and provision by the claimant of, a nuclear fuel reprocessing service to the owners/operators of certain nuclear power stations and specifically one in Germany, being a reprocessing facility designed and built for the purpose at Sellafield, known as the Thermal Oxide Reprocessing Plant or “THORP”.

The case consisted of claims by BNFL that the defendants had failed to pay the full amounts due under invoices rendered to each of them pursuant to the Service Agreements, as supplemented by the Side Letters. Non-payment was admitted, but the defendants sought to justify non-payment, and to obtain recovery of alleged overpayment, under a series of defences and counter-claims.

The Decision

Relevant excerpts from the judgment of the Mr Justice Briggs are worthy of being directly quoted – by reason of the high significance of the issue of the independence of experts and how an expert may counterbalance a lack of independence by various means. The judgment also addresses how a witness of fact may, in appropriate circumstances, also act in the same case as an expert witness.

The relevant excerpts are set out below:

54. BNFL’s main witness was Mr Nigel Donaldson, called both as a witness of fact and as an expert. … I have kept in mind the need to distinguish between Mr Donaldson’s qualities as a witness of fact, and his qualities as an expert.

55. Upon analysis, his role may fairly be divided into three. First, he gave direct factual evidence about aspects of the design and appraisal of the THORP project in which he had been personally involved at the relevant time. Secondly, he provided largely hearsay factual evidence about a whole range of matters relevant to the RTR issue which he had collected from a detailed appraisal of the relevant documents, and from discussion with current and former colleagues at BNFL, several of whom did not give evidence themselves. Thirdly, he gave expert evidence in the form of his opinion as to the reasonableness of the conclusions reached by BNFL in reaching its view that THORP could reprocess a 7,000tU baseload in ten years.

56. Mr Donaldson graduated with first class honours in Chemical Engineering from the University of Bradford in 1976.

… [The judge then set out Mr Donaldson’s career history] …

60. … Mr Donaldson has the benefit of long and broad experience in the technical management of both Oxide and MAGNOX fuel reprocessing, relevant detailed personal knowledge of the design, commissioning and operation of the THORP plant, in particular the HEP, and as a continuing senior employee of BNFL, the ability by site visit, discussions with colleagues and document appraisal to refresh his memory on the details of the design and operation of THORP, not shared either by retired employees or by independent experts. By contrast however with Dr Wilkinson, Dr Jeal and Mr Smith, Mr Donaldson was not personally involved in the decision making process which led to BNFL’s commitment to the 7,000tU baseload for THORP in 1986.

61. Mr Donaldson was a factual witness of quite exceptional quality. In addition to providing a highly detailed account of the design of THORP and of the ancillary plant necessary for a complete Oxide fuel reprocessing system in his first witness statement, he evidently carried out the most through preparation for the provision of further factual information while being cross examined, and in numerous respects amplified his written account with substantial and precise further detail, wherever requested either by counsel or by the court. … In short, there appeared to be no aspect of the Oxide or MAGNOX reprocessing plants at Sellafield about which Mr Donaldson had not carried out the necessary preparatory work to be able to provide well researched and reliable factual answers to the technical issues thrown up by the RTR issue.

62. Mr Donaldson gave his evidence with care, patience, courtesy and a becoming lack of arrogance. His account of matters of factual detail was not successfully challenged at any stage in cross examination. He was also a highly articulate and patient teacher of technical detail to the uninitiated, including of course myself, and very occasionally counsel. All in all, he was a witness of primary fact in whom I found it possible to place complete reliance.

63. As an expert, Mr Donaldson started with an inevitable disadvantage in being a full-time employee of BNFL. Prior to the decision of the Court of Appeal in R (Factortame Ltd) v Secretary of State for Transport, Local Government and the Regions (No 8) [2003] QB 381, there were some who thought that full-time employment by the party calling him was a crippling disability for an expert, sufficient to render his opinions inadmissible as expert evidence: see for example Liverpool Roman Catholic Archdiocesan Trustees v Goldberg (No 3) [2001] 1WLR2337.

64. While it is now clear that full-time employment by a party is no longer a disqualifying characteristic for the giving of expert evidence, the lack of an independent relationship between the expert and the party calling him nonetheless remains a major factor going to the weight of the expert evidence, and one which it has been necessary for me to bear constantly in mind. Nuclear fuel reprocessing is a subject in relation to which it is no doubt difficult to find experts with relevant experience and qualifications, and although there are no doubt other reprocessing plants abroad, each will operate under its own commercial, technological and in particular regulatory constraints which render experience abroad intrinsically less valuable to the expert than experience at Sellafield itself. Furthermore, it may persuasively be argued that there is little substitute, in terms of a reliable perception of the realities, for a long day-to-day involvement in the process of the design and commissioning of the very plant under review.

65. Balancing those considerations, Mr Donaldson’s thorough preparation, wide ranging experience and personal involvement in the design, operation and maintenance of the THORP plant and its predecessor at Sellafield largely made up for his lack of de facto independence from BNFL. Furthermore, it appeared to me that he had both taken on board and resolved to take seriously his responsibility to the court as an expert witness. He was much criticised in cross examination for the perhaps argumentative tone of parts of his second witness statement, in which he took the defendants’ experts to task in robust terms for, as he regarded it, ignoring or failing to take account of material matters, including matters as to which he had given factual evidence available to them before they wrote their reports. That cross examination of Mr Donaldson was directed to persuading me that he was arguing a case rather than providing an objective opinion. I found his oral evidence to be an encouraging contrast to the signs of argumentativeness in his second witness statement. On the whole, he seemed to me to maintain both balance and objectivity under cross examination to an extent which led me to conclude that the apparent argumentativeness of parts of his second witness statement was more a matter of style than substance. …”

Comment

For once a case where an expert is not criticized but is praised by a High Court judge and whose expert evidence is found to be of high quality! This example shows when it may be appropriate for a witness of fact to be an expert witness. It also shows the judicial balancing exercise between a lack of independence on the one hand and, on the other hand, the use of objectivity, logic and diligence by the expert witness who happens to be employed by a party to the litigation.  The importance of day to day hands on experience of such a witness, especially in a specialist area of activity, was highlighted by the judge. The presumption of a reduction in weight to an expert who is not independent may accordingly be effectively rebutted by the expert adopting an independent-minded and rigorously analytical approach to the giving of his expert opinion evidence.

Lay Witness with expert knowledge

[2008] EWHC 2220 (TCC) TEDR Volume 13 Issue 3

The Facts

This review concerns the status of the evidence of a Mr Taylor at the final trial of the extensive litigation arising out of the construction of the “new” Wembley Stadium.

Mr Taylor gave his evidence by way of witness statement of fact rather than as an Expert. Upon service, the Claimant objected to its admissibility on the basis that it contained opinion, comment, argument and expert evidence. Little more was said about the issue until the witness had given evidence. The Trial Judge was persuaded by both parties to deal with the issue of admissibility in his final judgment rather than during the trial.

The other issues (of which there were many) need not concern us here.

The Issues

To what extent can a witness of fact give evidence which contains opinion, comment, argument and expert evidence?

The Decision

Mr Taylor was a factual witness. He had no experience of giving expert evidence and no knowledge of the requirements of so doing. He was not independent of the Defendant, having worked for a company within their group for the last 11 years. There was no permission for his evidence under CPR 35. However, he was a highly qualified and experienced engineer who worked on the project.

Accordingly, the Trial Judge treated Mr Taylor’s evidence as that of a factual witness who:

a. Possessed considerable engineering expertise; and

b. Had personal knowledge of the roof design and erection engineering decisions during part of the construction.

The Court was referred to Lusty v Finsbury Securities Ltd (1991) 58 BLR 66 where the Court of Appeal held that an architect suing for fees could give opinion evidence as to the value of his work.

Further, in DN v LB Greenwich [2004] EWCA Civ 1659, the Court of Appeal considered the admissibility of such evidence in a professional negligence action. It was thought common that the alleged negligent professional would seek to give evidence as to why his conduct did not fall below the standard of care reasonably to be expected of him, perhaps by reference to literature. Such evidence was certainly admissible. Whilst it may lack the objectivity of an independent expert, that went to the cogency of the evidence and not its admissibility.

Accordingly, the Judge held that in construction litigation, an engineer giving factual evidence may also proffer:

a. Statements of opinion which are reasonably related to the facts within his knowledge; and

b. Relevant comments based upon his own experience.

Given the evidence was already before the Court, the Judge dealt with the issue on this basis and discounted anything within his evidence that did not fall within the above description.

Had the matter been considered pre-trial, the witness statement could have been re-drafted to remove any offending material.

The Judge noted that Mr Taylor gave his oral evidence in a fair and candid manner, despite his connection with the Defendants. He did, however, criticise the presentation of his written evidence as having been “unduly influenced” in its drafting by the Defendant lawyers.

Comment

Importantly, the lay witness who possesses relevant expertise can use it within his evidence. However, he may be subject to criticism for lack of objectivity.

If you are asked to give such evidence, take as much care with how the statement is drafted as you would with an expert report to help persuade the Judge (even before he hears from you) of your objectivity regardless of the different status.