misrepresentation is permissible in an expert’s report and that not only the other party but also the person trying to decide the issue, the ‘rustics’, are fair game. On reflection, if [Mr G] were right, I am not sure that even outright misrepresentation should be avoided. If litigation is to be conducted as if it were a game of Three Card Trick, what is wrong with having a couple of aces up your sleeve?” ... "The whole basis of [Mr G]'s approach to the drafting of an expert’s report is wrong. The function of a court of law is to discover the truth relating to the issues before it. In doing that it has to assess the evidence adduced by the parties. The judge is not a rustic who has chosen to play a game of Three Card Trick. He is not fair game. Nor is the truth." “An expert should not consider that it is his job to stand shoulder-to-shoulder through thick and thin with the side which is paying his bill. ‘Pragmatic flexibility’ as used by [Mr G] is a euphemism for ‘misleading selectivity’. According to this approach the flexibility will give place to something closer to the true and balanced view of the expert only when he is being cross-examined and is faced with the possibility of being ‘found out’. The reality, of course, will be somewhat different. An expert who has committed himself in writing to a report which is selectively misleading may feel obliged to stick to the views he expressed there when he is cross-examined. Most witnesses would not be prepared to admit at the beginning of cross examination, as [Mr G] effectively did that he was approaching the drafting of his report as a partisan hired gun. The result is that the expert’s report and then his oral evidence will be contaminated by this attempted sleight of mind.” "Near the beginning of his report, [Mr G] says the following: "I believe that the inspections I have made and the graphic and other material that I have seen are sufficient to enable me to reach an informed opinion on the matters in dispute in the present action that fall within my discipline. I have no connexion with either of the parties in this action, nor have I any prior acquaintance with instructing solicitors or Counsel. I have no pecuniary or other interest in the outcome of the current litigation." The clear purpose of these statements was to convey the impression to the plaintiffs and the court that the report was the independent unbiased product of the expert. Some may characterise this as pragmatic flexibility. In my view that impression is simply false. In the light of the matters set out above, during the preparation of this judgment I re-read [Mr G]’s report on the understanding that it was drafted as a partisan tract with the objective of selling the defendant’s case to the court and ignoring virtually everything which could harm that objective. I did not find it of significant assistance in deciding the issues."
ABOUT THE AUTHOR
Ryan Deane Associate
Ryan Deane, a qualified barrister, is a litigation associate who concentrates his practice on international arbitration in the engineering, energy and construction sectors.