OVER EAGER EXPERTS JUST DO NOT HELP: THEY HINDER AND HARM THE CASES OF THOSE WHO CALL THEM

Several preliminary remarks of  HH Simon Barker QC in Bacciotinni & Cook -v- Gotelle & Goldsmith [2014] EWHC  3257 Ch underline the dangers of an “over eager” expert witness making comments which undermine their own evidence and taint the case of the party who instructs them.  Here we look at this case and other recent cases where the trial judge has been highly critical of the evidence of the experts.

THE COMMENTS IN BACCIOTINNI

The judge was considering the evidence of planning witnesses. The expert instructed by the defendant made adverse comments about other developments. This had no impact on the trial (the defendant’s counsel wisely chose not to deal with these issues). It only served to

  1. Unusually for an expert witness, Gotelee’s expert planning witness sought to cast a shadow over Mr Bacciottini’s character and his conduct as a property developer by reference to a development within the area controlled by Tendring District Council in Essex. None of this was put to Mr Bacciottini in cross-examination, and indeed, Gotelee’s own representatives, Mr Gatt QC, who leads Mr Robertson, have not associated their client with those observations.
  2. There may or may not be something in what Mr Le Grys, who was the defendant’s planning expert, said, but, for the purposes of this judgment, I attach no weight to that evidence adverse to Mr Bacciottini. On the other hand, it does, as Mrs Peacocke, who appears for Mr Bacciottini and Ms Cook, submits, taint the objectively of Mr Le Grys’ evidence as an expert witness, and I must therefore approach his evidence so cautioned.

So an attempt to discredit the claimant ultimately served only to discredit the witness.

EXPERTS TRYING TO DETERMINE FACTUAL ISSUES

In Garcia -v- Associated Newspapers  [2014] EWHC 3137

Dingemans J considered the evidence of an expert.

Dr Gerada gave evidence about which respective version of events was most likely to be reliable. I have not taken that evidence into account, and Mr Browne was justified in stating that Dr Gerada’s evidence on this point was not permissible expert evidence as it dealt with issues of fact, and not issues on which expert evidence was relevant.”

DON’T PUT YOUR EXPERT ON THE STAGECOACH: AN EXPERT TOTALLY DISCREDITED

Mr Justice Coulson in Stagecoach Great Western Trains -v- Hind & Steel [2014] EWHC 1891 (TCC) was highly critical of the expert called by the claimant.

THE CASE

The action was brought by a train company whose train had been damaged by a tree that had fallen from the first defendant’s property onto a train track. It also brought an action against a tree surgeon who had worked on the tree.  The judge decided that there had been no breach of duty by any of the defendants.  However what the judge had to say about the expert evidence is of particular interest to litigators and experts alike.

COMMENTS ABOUT THE EXPERT EVIDENCE

4. THE EXPERT EVIDENCE

  1. General
  1. Not all of the expert evidence was satisfactory. In a case of this sort, what assists the court most is agreement about the state of the Tree before the incident and, in connection with the case against Mr Steel, a discussion of the various professional obligations which he may or may not have had. Instead, although there was a useful Joint Statement, the experts, particularly Mr Sheppard, spent far too much time dealing with matters of law and contentious matters of fact. There was also an uncomfortable amount of switching between that which the experts said an arboriculturalist should or could have done, and that which they suggested may be an obligation on the part of the landowner, without these boundaries ever being properly delineated and adhered to, and with no real regard for the fact that the latter issue was a matter for the court, not the experts[1].

Mr Sheppard

  1. Interview with Ms Hind
  1. When he visited the site in June 2010, Mr Sheppard (who had been instructed by the claimant and was already liaising with the claimant’s solicitor) briefly inspected the site and then had what was called an informal conversation with Ms Hind. As they were speaking, and rather betraying that alleged informality, Mr Sheppard made some rough notes on a small scrap of paper. He then went back to his car and expanded on his notes, principally by inserting questions into the notes that he had already made. There has been a long-running dispute about the accuracy of the notes. Moreover, although he had told Ms Hind that he would send her a copy of the notes for her to agree, he failed to do so. There was no explanation for this failure.
  1. When he was cross-examined by Mr Stead, on behalf of Ms Hind, it quickly became apparent that there were significant inaccuracies in the notes that Mr Sheppard had made. For example, Mr Sheppard noted that Ms Hind had said that she “never” went to the area of the garden where the Tree was. Ms Hind vehemently denied saying that, and stressed instead that she had told Mr Sheppard that she did go there (as part of her general observations of the trees), albeit that (because of the overgrown nature of the area) her visits were relatively rare. In cross-examination, he accepted that, although he could no longer remember the conversation, “rarely” was the word she had used. There was no explanation as to why, in his notes, he had deleted the word “rarely” and inserted the word “never”.
  1. There were numerous other errors and misleading changes of emphasis in Mr Sheppard’s notes. Again by way of example, Ms Hind gave evidence that, during that conversation, she told Mr Sheppard about the work which Mr Steel had done. Although Mr Sheppard could not remember the conversation, he continued to deny that she had made any mention of Mr Steel’s work. That seems inherently implausible, since she would have had no reason not to mention that work, particularly as she was talking about the trees in her own garden. That implausibility was then underlined by the fact that, in his first report, dated 2010, Mr Sheppard made express reference to the work done to the trees in the garden. There was no source for that information other than Ms Hind. This again demonstrated the inaccuracies of Mr Sheppard’s note-taking technique, and his equally unreliable recollection of the conversation.
  1. Still further, I noted that, in his reports, Mr Sheppard sets out a large number of things which he said Ms Hind had said to him during that interview. They are expressed as things which Ms Hind ‘stated’. But these were not matters which were referable even to the (inaccurate) notes that he had made. When Mr Stead cross-examined him about this, he accepted that these were his words, rather than Ms Hind’s, and were his ‘interpretation’ of what she said or would have said. That meant that the reports were doubly misleading, both because they failed accurately to report what Ms Hind had actually said, and because they identified her as saying things which were, in truth, just Mr Sheppard’s interpretation of what he thought she would have said.
  1. In the context of this case, these failures matter. Ms Hind, an intelligent woman and a keen gardener with a working knowledge of trees (see paragraphs 75-80 below), was portrayed in Mr Sheppard’s reports as someone who did not care about this Tree, or any of the trees in her garden at all, and had cheerfully let it all go to rack and ruin. There was even an echo of this stance in Mr Meredith Hardy’s closing submissions. I consider that this picture of Ms Hind was wholly misleading and inaccurate.
  1. I deprecate this aspect of the claimant’s case in the strongest terms. Save in exceptional circumstances, experts should not embark on this kind of fact-finding exercise, particularly when they perform it so unprofessionally. Matters of fact are for witnesses of fact, not for experts. Because a formal claim had already been made against Ms Hind by this time, she should at the very least have been interviewed by a solicitor and been given the opportunity of checking the resulting notes of that interview. Neither of these things happened. Inevitably, therefore, these failures meant that I regarded the remainder of Mr Sheppard’s evidence with considerable scepticism.
  1. Mr Sheppard’s ‘Trimming’
  1. Unhappily, my reservations about Mr Sheppard’s evidence did not end there. As will become apparent below, there is a significant issue in this case about whether Ms Hind should have regularly arranged for more detailed expert inspections of the trees at the property as a matter of course, or whether such inspections were only necessitated if there was some indication that there may have been a problem with the Tree. In his first report, at paragraph 7.5, Mr Sheppard accepted that the need for more detailed inspections was only triggered “if the tree displays unusual characteristics”. However, by the time that paragraph was repeated in his second report (and after the matter had been discussed with the claimant’s solicitors), it had been trimmed and the reference to the requirement for some form of trigger had been deleted entirely.
  1. Mr Sheppard said that this trimming was for reasons of space. I regret that I am wholly unable to accept that explanation: indeed, I regard it as so absurd as to constitute further evidence that Mr Sheppard was not acting as an independent expert in accordance with CPR Part 35. It is plain that paragraph 7.5 of Mr Sheppard’s first report was his honest belief, and, as we shall see, it is one that was in accordance with the authorities. But it was clearly detrimental to the claimant’s case (because of the difficulty in pointing to anything which indicated that this apparently healthy tree was, in fact, potentially unsafe). I find that this was the reason why this important passage was omitted from the second report. It again confirmed my view that Mr Sheppard’s expert evidence was unreliable.

EXPERTS ON A SLOW BOAT TO NOWHERE

In Hirtenstein -v- Hill Dickinson LLP [2014]  EWHC 2711 (Comm) the judge was highly critical of the expert. Considering expert evidence  in relation to the costs of repairs of a yacht.

Cost of repairs – Mr Smith’s evidence

  1. The claimants’ engineering expert, Mr Smith, assessed the cost of restoring the Yacht to its warranted condition in the sum of US$2,381,760. Mr Smith was provided with a spreadsheet listing all expenditure on the Yacht in the period July 2010 to April 2012, totalling US$2,850,118. The person (not identified by Mr Smith) who prepared the spreadsheet had already allocated the expenditure in columns between repairs, routine maintenance, upgrades and a category headed “questionable”. Mr Smith said that his instructions were to analyse the costs and to allocate them, including those marked as “questionable”, to the correct category.[4]
  2. None of the “questionable” items was classified by Mr Smith as an upgrade; nor did he classify as an upgrade any item which had been provisionally categorised as a repair or as routine maintenance. However, it is only necessary to read through the schedule of purported repair costs appended to Mr Smith’s report for it to be obvious that they include numerous items such as attorney’s fees (which Mr Smith was completely unable to explain) and a vast array of fittings and accoutrements, computer equipment and office supplies etc which are palpably unjustifiable. As these items evidently include a complete refit of the galley, it may truly be said, as Mr Tozzi, acting for the defendant, observed, that the claim includes the kitchen sink.
  3. The careless way in which Mr Smith approached his task can be gauged by the fact that approximately three pages of items which appeared in Mr Smith’s schedule of upgrades also appeared in his schedule of repairs. When asked about this, Mr Smith said that his error was to have included the sums in the schedule of upgrades. The sums in question included items such as guest bedding (US$13,549), main salon furniture (US$30,124), napkins and placement settings (US$17,174) and wine glasses (US$792) – to take just a few examples. Mr Smith’s explanation of why he considered that these and very many other sums which appeared, to say the least, questionable should be classified as repairs rather than upgrades was that he had assumed from the fact that they were purchased that it must have been necessary to purchase them in order to bring the Yacht up to the warranted standard, and not simply a choice of the owner to do so. Mr Smith agreed that he was therefore, in effect, assuming the answer to the question that he had been asked.
  4. Another unsatisfactory feature of Mr Smith’s evidence was that he attached to his supplemental report an appendix itemising expenditure totalling US$734,161 headed “costs for repairs to restore Il Sole to warranty standard (2)” which he was completely unable to explain. The appendix was not mentioned anywhere in the body of the report and Mr Smith had a “suspicion” that it might have been included in error.
  5. At the end of Mr Smith’s evidence, I offered him the opportunity to provide an explanation to the court before the end of the trial of how an appendix had come to be included as part of his report of which he claimed to have no knowledge. Mr Smith did not take up that opportunity, and I can therefore only infer that there is no explanation which exonerates Mr Smith of incompetence. On his showing in this case I do not consider that he is a fit person to act as an expert witness.
  6. In conclusion, I can attach no credence at all to the figures put forward by the claimants and rubber-stamped by Mr Smith for the alleged cost of repairs.

LESSONS FOR LITIGATORS

Every litigator likes to receive a favourable expert report.  However reports that are partisan and attempt to extend the expert’s role to that of advocate are, ultimately, unhelpful. The early euphoria of an expert report can disappear when the expert has a major change of heart at a joint meeting of experts or  their evidence is simply discredited on cross-examination.  Problems of thie kind with  an expert report should be identified and dealt with at an early stage, by the party instructing that witness. If an expert is not closely following the strictures and requirements of CPR Part 35 they are likely to do more harm than good.

 

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