Now see if you can spot the difference in the full quotation:
“When involved with smaller developments and inexperienced Clients and Contractors, the Project Monitor, whilst strictly responsible to the Client, may also be asked to perform a hand-holding exercise with the Client and may have to develop his or her own elemental breakdown of construction costs to prove or disprove the Developer’s figures.”
The words Mr V omitted were exactly the words which would have shown that this part of the RICS guidance was irrelevant. The Bank was not inexperienced. Neither was the developer. It was not a small development. Watts were not being asked to perform a “hand-holding exercise.” Coulson J did not mince his words, and called this a “blatant misuse of a source document, in order to present a criticism on a false basis.” Few experts may be as blatant as this, but they should be reminded that any attempt to ‘creatively’ quote from documents is likely to backfire. One of the first things that opposing lawyers will do on receipt of an expert report is check if any quotations harmful to their case have been taken out of context. Indeed that exercise should be carried out by competent lawyers on their own experts’ reports.
Unreasonableness
Coulson J considered that Mr V’s overall approach was “thoroughly unreasonable.” Mr V made no concessions in his oral evidence nor in the experts’ joint statement and had instead, as noted in that report, used the experts’ meetings to raise entirely new matters. Indeed the experienced TCC judge went so far as to say “I have never seen a Joint Statement between experts that contained no agreement at all.”
Another example of Mr V’s unreasonableness was his criticism of Watts’ subsequent monitoring reports, which formed no part of the Bank’s pleaded case. This only served to add to the impression that the expert was prepared to go to any lengths to criticise the opposing party and shore up the Bank’s case. It would be wrong to think that what will help the client the most is an unwavering defence of the client’s case and an undiscerning attack on the behaviour of the opposing parties. Taking either of these stances will, in all likelihood, be counterproductive.
Independence
Coulson J concluded that Mr V was not a properly independent witness. On the facts, this conclusion came as no surprise; the Bank had been Mr V’s principle client over the last few years, and had given Mr V numerous instructions to act as an expert witness in actions against monitoring surveyors arising out of the 2008 financial crash. Until this case, every dispute had been settled out of court. Coulson J said that he suspected Mr V was unaware of the difference between acting as the Bank’s advocate in, say, a mediation, and his duties to the court when giving expert evidence.
Guidance for Experts
Mr V’s lack of independence contributed to each of the deficiencies in his evidence. The judge noted that the duties of an independent expert were long established, and were set out in the well-known judgment of The Ikarian Reefer [2000] 1 WLR 603.
That case concerned the loss at sea of the Ikarian Reefer, which had run aground and then caught fire, causing it to be abandoned off the coast of Sierra Leone. The question was whether those acts were deliberate or accidental, and much depended on the expert evidence. Mr Justice Cresswell believed that a misunderstanding on the part of some of the eight expert witnesses in the case as to their duties and responsibilities contributed to the length of court proceedings. He therefore set out the following guidance, which should be brought to any prospective expert witness’s attention:
- Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
- An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate.