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Prove it! Witness and Expert Evidence in 2020
- Nov 20, 2020
- Latest News
by Lucinda Robinson at Fenwick Elliot
Who doesn’t love a good “whodunit” story, a game of Cluedo or a murder mystery party? Unscrambling the mysteries, following the clues and finding that vital piece of evidence to crack the case is all exciting stuff. Confession time: an interest in investigating and piecing together evidence might help explain why I like litigation. But, if you cannot rely on your evidence, your case is going to collapse.
Translating this into the commercial world, a case cannot be won on argument alone. It will turn on the evidence; documents, witness statements and expert reports. Recent developments relating to factual and expert witnesses demonstrate the importance of ensuring evidence is credible. These need to be understood and applied by anyone challenged to “prove it”. Here are the case notes.
When drafting witness statements, it is tempting to present only what is favourable and positive to the client. The recent case of DBE Energy Ltd v Biogas Products Ltd is an excellent demonstration of how that can backfire.
The Defendant attempted to demonstrate that the scope of its design responsibility for components design, manufactured and supplied for incorporation into DBE’s new anaerobic digestion facility, was limited and that it was not in breach of its duties. Unfortunately for the Defendant, one of its witnesses was not particularly credible.
The judgment records that the witness had not dealt with various documents contradicting his evidence and had included errors in the statement that were exposed during cross-examination. Conversely, the Claimant’s witness evidence was consistent with the documents. The Judge decided to test the Defendant’s witness evidence against the documents and, if and where it was inconsistent, to find that it was unreliable.
Credibility was also an issue in last month’s judgment in Essex County Council v UBB Waste (Essex) Limited. The contemporary documents of UBB’s key factual witness were littered with swearwords and deception, indicating a lack of integrity and an effort to gain commercial advantage at the expense of openness and honesty. Pepperall J decided to treat this witness’s evidence with caution unless it was otherwise corroborated. In contrast, the Judge identified praiseworthy traits of other witnesses including being straightforward, making proper concessions and taking time to consider documents carefully and give accurate answers under cross-examination. These were good indicators of reliability.
The courts’ preference for documentary evidence over witness statements is not new. In 2013 in Gestmin SGPS SA v Credit Suisse (UK) Ltd for example, it was stated that: “the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts”.
The message is clear. Witnesses should give evidence that is consistent with the documents. Rather than ignore unfavourable documents it can be better to acknowledge and explain them. Whilst tackling them head-on may raise some difficult issues, these are likely to be confronted in cross-examination anyway. Dealing with them in the witness statement allows the witness to present their view in a considered way without the pressure of being in the witness box and helps preserve credibility.
DBE v Biogas also provides a salutary lesson for experts who cross the line from providing impartial opinion to bias, advocacy and even judgment.
The Defendant’s expert was found wanting because he:
1 attempted to include inadmissible material in both his report and in the experts’ joint statement;
2 advocated for the Defendant in his reports by accepting its version of events without recognising the differences in the Claimant’s version of the story; and
3 determined facts that were not agreed, which is the role of the court not the expert.
In doing all this the expert gave the impression that he was biased, so where the experts disagreed the Judge preferred the evidence of the other expert.
In Essex v UBB Waste the problem was that UBB’s technical expert did not appear to be independent or impartial. He was the MD of a firm of consulting engineers who had provided significant design advice to UBB during the course of the works, was acting as expert on the proviso that a claim against his firm notified by UBB was dropped and so had a vested interest in UBB’s successful defence. Pepperall J stated that the conflict of interest should have been disclosed and, if it had been, permission to rely on him as expert may not have been granted. In addition, the expert had strayed into advocacy and put forward some arguments that were simply not credible. Overall, the Judge determined that his evidence had to be treated with caution but did not go so far as to render it inadmissible.
These indictments are consistent with the vociferous criticism of other experts overstepping the mark by Fraser J in the past two years, first in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd and subsequently in Bates and others v Post Office Ltd.
Clearly, and rightly, the TCC will not stand for experts expounding partisan positions or attempting to play judge. Expert evidence is often critical in construction cases, so it is essential that parties and their legal representatives ensure they can rely on their experts. Impartiality must be insisted upon. If the expert appears to show bias then their evidence will be discredited and material that could have been useful and persuasive will be wasted.
A challenge to the independence of expert evidence was made in Blackpool Borough Council v Volkerfitzpatrick Ltd & Ors in an effort to have the evidence and claim dismissed. Here the parties’ respective experts agreed to use a single testing house to provide data on which they could each opine. The Claimant’s expert engaged in a unilateral contact with the testing house and requested additional tests, the results of which it shared with the Defendant. The Defendant later sought to have the Claimant’s expert evidence and claim struck out because of this.
The court noted that the Claimant’s expert’s behaviour was not best practice and it should have copied in the Defendant, but decided it was not in breach of its duties. The behaviour was not contrary to the case management order, the testing house was not a single joint expert and, whilst the parties had to be transparent, a “running commentary” was not necessary. There was no evidence of impropriety compromising the independence of the testing house and rendering the results unreliable, so the evidence and claim could stand on this occasion. It seems that there must be clear evidence of impropriety for such a challenge to succeed.
Conflict of Interest
A challenge to expert evidence on the grounds of a conflict of interest has succeeded this year. In A Company v X, Y and Z three defendant companies were involved, all of which belonged to one group that was engaged in providing expert consultancy services globally. Injunctions were obtained to prevent all companies from acting for a party to an arbitration because an expert from the same consultancy group was already acting for the opposition party, albeit in a different but related arbitration.
On the facts, the risk of disclosing documents between the group companies had been overcome in practice, but that was not enough. A fiduciary relationship was identified between the consultancy group and the first party for whom it had agreed to act. This prohibited the rest of the consultancy group from acting for the other party because the whole group already owed its undivided loyalty elsewhere.
This decision has significant repercussions. A fiduciary relationship, one of trust and confidence, imposes duties beyond typical contractual confidentiality responsibilities and is not one that most consultancy firms would have expected they were taking on with the role of expert. Previously, experts were not on the recognised list of fiduciaries. Whilst this case was determined on its own facts and particular retainer, the situation described is fairly typical and so the principle appears to have wide application.
Further, as the larger, international and multidisciplinary consultancy firms increasingly expand to swallow up smaller outfits, the number of options for a party seeking expert support reduces. This decision may restrict those options even more because once an instruction is accepted by one expert, in one discipline, in one group company and in one country, that prevents any other expert in the same group from acting for another party on a related matter, even if the discipline, legal entity and country are different and an information barrier could be put in place.
Experts need to exercise caution in their actual and potential conflict checks and be ready to turn down instructions they may previously have accepted. If an existing conflict is suspected, then parties to existing litigation and arbitrations may have grounds to challenge their opponent’s expert.
A case cannot be proven without evidence, so the credibility of that evidence must be preserved. Parties must take care to ensure their expert has no conflict of interest and remains independent and impartial. They must also remember that the place for argument is in pleadings or submissions. Factual witnesses should stick to the facts and experts should stick to impartial technical opinion. It does not take a super-sleuth to work out that when witnesses stray beyond their territory, they risk compromising the integrity and effectiveness of their evidence.
Many thanks to Lucinda Robinson and Fenwick Elliott for permission to reprint this article.
Fenwick Elliot is the largest construction and energy law firm in the UK, working closely with clients on construction, engineering and energy projects worldwide.