Marie-Claire O'Hara and Michael Fallow report on a sorry tale from the Technology and Construction Court about when being an expert goes horribly wrong.
Many construction litigators will have read the recent judgement of Mr Justice Coulson in the Technology and Construction Court (TCC) case of Van Oord Ltd and another v Allseas UK Ltd  EWHC 3074 (TCC) with particular interest. It is unequivocally critical of a quantum expert instructed by the claimants and serves as an illustration of just how far an expert can stray from the path required by CPR Part 35 of independence and objectivity. The expert had allowed himself to become the claimants' "mouthpiece" with the result that his evidence was discounted in its entirety.
This is a damning judgement for the expert in question and probably disastrous for the claimants particularly in circumstances where the judge was also unimpressed and unconvinced by their witness of fact, described by the judge as being "as unconvincing a group of factual witnesses in a commercial claim as [he had] ever encountered".
Perhaps the failings of the expert – 12 of them, listed out by the judge one by one and summarised below – were so total and complete as to make the case unusual. However, there are lessons to be learned by all involved in resolving construction disputes, whether as experts, instructing solicitors, counsel or client, and consequently, the criticisms of the judge should be considered carefully.
The twelve reasons why the expert's evidence could not be accepted were:
- The expert took the claimants' pleaded claims at face value without checking "the underlying documents that supported or undermined them";
- The report had been prepared solely on the basis of looking at the claimants' factual witness statements, discounting any engagement with the defendant's statements of fact;
- Despite there being several ways to value the claims and ignoring Coulson J's "exhortations to the experts (…) to agree figures based on both their own and the other side's case", the claimants' expert valued the claims only on the basis of the claimants' claim as prepared by their claims consultants (who did not themselves give evidence);
- In so doing, the expert "never once considered, let alone formulated, claims based upon the actual costs incurred by [the cClaimants]" leading the claim to appear to be a "try-on";
- In the course of his cross-examination the expert was caught out numerous times to the extent that the "admitted errors fatally undermined both his credibility and the credibility of [the claimants'] claim as a whole";
- In so doing, the expert went so far as to say in cross-examination that he was not happy with his own reports, a fact that led the judge to express that "if an expert disowns his own reports in this way, the court cannot sensibly have any regard to them";
- Further, the expert conceded that parts of his reports were confusing and admitted that some parts were even misleading;
- Documents that he had appended to his reports had not been checked by him, but simply had been put together by the claimants;
- It was found during cross-examination that the views expressed in his report were in fact assertions made by the claimants' factual witnesses, which assertions had already been proved incorrect during their own cross-examinations. The judge considered that, in this way, the expert was used to try and plug the gaps in the claimants' evidence exposed in cross-examination which was "the complete opposite of what a responsible, independent expert is obliged to do". The judge referred to it as "subterfuge";
- The expert tried to pass off a schedule as being prepared by himself when it was in fact prepared by two of the claimants' factual witnesses, and the schedule was found to include important errors which meant the schedule had to be discounted entirely;
- The expert accepted that "instead of checking the claims himself, he had preferred to recite what others had told him, even though what he had been told could be shown to be obviously wrong"; and
- When valuing each line item in the quantum claim, the expert had not sought to use fair and reasonable rates, even as a cross-check, to investigate whether the figures he was "so carelessly promoting" were actually fair and reasonable, or instead represented some sort of windfall for the claimants. It rendered the whole of the valuation exercise worthless.
Undoubtedly, there will be severe cost consequences as a result of the expert's conduct.
Of course, all experts will (or should) know and be familiar with Part 35 of the CPR and Practice Direction 35. There is also guidance published by various professional bodies that assists further. The overarching principle (as set out in rule 35.3) is that an expert owes a duty to assist the court and this duty ovverrides any obligation to those instructing or paying the expert. That means:
- The expert's opinion should be the independent product of the expert uninfluenced by the pressures of litigation;
- The expert should assist the court by providing objective, unbaised opinions on matters within their expertise and should not assume the role of advocate;
- The expert should consider all material facts, including those that might detract from their opinions;
- The expert should make it clear if a question or isssue falls outside the scope of their expertise or when they are unable to reach a definite opinion (for example, because they have sufficient information).
In the Van Oord case, the expert was inexperienced and was probably not adequately surpervised by the legal team conducting the claim on behalf of the claimants. There may have been issues with time management and availability (especially as the expert mentioned a serious family illness) which seems to have led the expert to cut corners so that he accepted the work of others as his own; omitted to read all of the material underlying the claims; overlooked the defendant's evidence; failed to address the criticisms raised by the defendant's quantum expert before trial; and did not consider and quantify alternatives to the quantum being put forward by the claimants.