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  • Overview

    In the case of The Governor and Company of the Bank of Ireland and anor v Watts Group plc [2017] EWHC 1667 (TCC) ("the Case"), the Court questioned the independence and reliability of an expert witness.

    As a consequence, it has become even more important for those instructed as an expert witness, to be aware of their duties.

    Background to the Case

    The claimant in the case (the Bank of Ireland ("the BOI")) sought damages for professional negligence against the defendant quantity surveyors ("Watts") with regards to losses arising from residential property development. The BOI had lent money to a property developer that went into liquidation and could not repay the loan. The bank suffered a loss of approximately £750,000.

    In the Case, the BOI argued that it had relied upon Watts’ Initial Appraisal Report ("the Report") which was negligently prepared. The BOI said that had the Report been properly prepared, it would not have lent the money to the developer company and as a consequence, would not have suffered a loss. The negligence claimed by the BOI was denied by Watts and both parties sought and relied upon independent expert witnesses.

    The court rejected all of the BOI’s claims against Watts for negligence, and held that even if there had been negligence, the BOI’s case failed on causation. The court also stated that the loss claimed was irrecoverable because it was an "information" case (i.e. information was provided to the BOI to enable it to decide on a course of action) rather than an "advice" case (i.e. advising the BOI on a course of action to take); a point which should comfort professional consultants and project monitors.

    The Case is noteworthy as although the decision is based on settled law, it highlights the risks when instructing the same expert witness on multiple claims. As the Court was particularly critical of the BOI’s expert witness ("the Expert"), it is also a reminder that expert witnesses must take their duties seriously when instructed to act.

    The Court's Concerns

    In the judgment, the Court made some general observations regarding the BOI’s expert evidence. The Court focused particularly on his:

    • Lack of independence – The Expert was not a "properly independent witness" because the BOI was the Expert’s main client. In addition, as the work that the Expert had previously undertaken for the BOI was resolved by alternative dispute resolution methods, the Expert was unaware of the difference between acting as an advocate in, say, mediation, and his duties to the court when giving expert evidence
    • Attempts to mislead the court – The Expert referred to RICS guidance, but in doing so, he deliberately removed words which would have weakened the BOI’s position
    • Application of the wrong test – The Expert did not look at what a reasonably competent monitoring surveyor would have done in the circumstances. Instead, he referred to what he would have done
    • Unreasonableness – The Expert had acted unreasonably throughout. For example, he made no concessions at the experts’ ‘without prejudice’ meetings and as a consequence the judge claimed that he had never seen such a "Joint Statement between experts that contained no agreement at all."
       

    Experts' duties

    The Case highlights that it is extremely important for experts to understand their duties to the court when acting as an expert witness in proceedings.

    Part 35 of the Civil Procedure Rules governs the use of experts by parties during Court proceedings. The Civil Procedure Rules are rules which govern the conduct of litigation in England and Wales and the provisions within Part 35 and the accompanying Practice Direction 35 should always be taken into account by any expert instructed.

    Experts’ duties can also be found in the Civil Justice Council Guidance for the instruction of experts in civil claims 2014 and in the relevant court guide (where appropriate).

    In general, experts must remember that:

    • They have a duty to the Court and their duty is to help the Court by providing objective, unbiased opinions on the matters within their expertise. This duty overrides any obligations to the person from whom instructions have been received
    • They have a duty to the instructing party to exercise reasonable skill and care in carrying out any instructions, and will be expected to comply with any relevant professional code of ethics
    • They have a duty to inform the instructing party if any conflict of interest is suspected / apparent
    • Expert evidence is independent and should be uninfluenced by the demands of litigation. A useful test is whether the same opinion would be expressed if given the same instructions by an opposing party
    • All material facts should be taken into account, including those which may detract from their opinion
    • They should never assume the role of an advocate or mediator, nor should they promote the point of view of the instructing party.
       

    Lessons to be learnt

    The Cse reminds experts that they must be aware of their duties when undertaking instructions to act as an expert witness. They must remain independent and that their overriding duty is to the court.

    The Case also highlights the dangers of instructing the same expert on multiple claims, as an expert’s independence may be questioned by the court due to the frequency of their engagement.

    The above is an overview of experts’ duties in light of the Case and is by no means a comprehensive guide. If you would like to discuss any issues relating to experts’ duties, please contact Douglas Skilton, Partner in our Dispute Resolution team at douglas.skilton@ts-p.co.uk, or on 01322 623700.

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    Our team of experienced and highly specialist lawyers includes experts in contractual, commercial and international disputes, insolvency, shareholders’, directors and partnership disputes, in disputes arising from construction/engineering projects and we also act for clients seeking to protect or defend intellectual property/IT rights.

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