How Not to Expert

How not to expert: Lessons from the TCC

Is the word “expert” even a verb? Probably not, but it seems to me to make a catchy headline for an important topic.

Recently, I had the privilege of presenting a lecture[1] to participants at the New Zealand Law Society - Te Kāhui Ture o Aotearoa Litigation Skills course. The subject was “how to get the most out of your expert witness”. In preparing to address the participants I was able to “refresh my memory” about the UK Technology and Construction Court (TCC) decision of Justice Coulson in Van Oord UK Ltd & SICIM Roadbridge Ltd v Allseas UK Limited[2]. The case has been described by others, aptly, as “An Expert Horror Story”.

The facts

The case was about a claim by Van Oord and SCIM Roadbridge (referred to collectively as OSR) against Allseas UK (AUK) for £10 million (inauspiciously reduced to £2 million by the end of the trial) for alleged disruption and prolongation costsduring the construction of a gas pipeline in the Shetland Islands in Scotland.

As many construction cases do, the winning (and, for OSR in this case, the losing) of the case came down, largely, to an assessment of the competing expert evidence. Unfortunately for OSR, their expert on quantum, a Mr Lester, fell considerably short of the standard expected by the Court. As a consequence, his expert evidence was completely cast to one side, with the result that the OSR’s claim inevitably, and completely, failed. No doubt a disaster for OSR.

The Court’s comments on the expert evidence

In reaching the decision to discount Mr Lester’s expert evidence in its entirety (finding that it was “entirely worthless”), Justice Coulson gave no less than 12 reasons, yes 12 reasons, why he could not rely on it. The decision should be compulsory reading for dispute resolution lawyers and expert witnesses alike.

Before examining the reasons, a flavour for what occurred can be found in the Judge’s introductory comments to his analysis of the expert evidence, where he said:[3]

I endeavoured to give Mr Lester the benefit of the doubt, particularly given his frank admission that he had not previously prepared a written expert's report or given evidence in the High Court, and because I was aware that he was dealing with a serious illness in his family. His abrupt departure from the witness box at a short break for the transcribers, never to return, was an indication of the undoubted stress he was under.

You read that correctly. Mr Lester left the witness box at a brief adjournment during his cross-examination, and never came back.

Aside from the issue of Mr Lester’s departure mid-trial, the Judge’s reasons for discounting his expert evidence were (and this is where the title of this article comes into play):

1.       Mr Lester repeatedly took OSR’s pleaded claims at face value and did not check the underlying documents that supported or undermined them. The Judge noted that for many of the disputed items “there was often no quantity surveying input from him at all”.

2.       Mr Lester prepared his report by only looking at the witness statements prepared on behalf of OSR. He did not look the witness statements of AUK’s witnesses at all. In some instances, controversial parts of AUK’s statements were simply cut and pasted into his report as if they were a contemporaneous record of events. The Judge noted that his report and evidence was “inevitably biased” in favour of the claimant as a result.

3.       Mr Lester refused to value items on any basis, or on any assumption, other than the full basis of OSR’s claim. That was despite the Judge’s exhortations to the experts to attempt to agree figures. The Judge rightly described this as a “very dangerous stance”, because if one of the disputed assumptions on which OSR’s claim was based was found to be wrong (of which there were many), there were no alternative figures, save for those put forward by AUK’s expert.

4.       Not only did Mr Lester base his promotion of OSR’s claims on “made-up” or calculated rates, he failed to consider or formulate claims based upon the actual costs incurred OSR. The Judge concluded that this created an overwhelming impression that the claim was potentially a “try-on”, no doubt reinforced by the fact that Mr Lester “resolutely refused” to address the issue as to whether or not OSR had suffered any actual loss.

5.       The Judge recorded that, throughout his cross-examination, Mr Lester was caught out on numerous matters, most of which were relatively obvious, as they had been pointed out months earlier by the opposing expert in his report. Mr Lester originally said that these were typing errors or examples of poor presentation, but, as his cross-examination wore on, he could not escape from the truth that many were much more fundamental than that, and went to the heart of his wholly uncritical approach to OSR’s claim. By the end of his cross-examination, he was accepting every criticism or error being put to him; on occasions, he even conceded points before they had even been suggested. The Judge concluded that the admitted errors “fatally undermined both his credibility and the credibility of the OSR’s claim as a whole.”

6.       Mr Lester admitted in cross-examination that he was not happy with any of his reports. The Judge commented that:

“if an expert disowns [their] own reports in this way, the court cannot sensibly have any regard to them.”

7.       Mr Lester accepted that parts of his reports were confusing and misleading. For example, he calculated various rates in his report because he said that it was necessary to do so, but then he did not use the rates that he had calculated, and used instead rates which OSR said that they had been paid for other work, and which he did not calculate at all.

8.       Mr Lester appended documents to his original report which he had either not looked at, or had not checked. The Judge drew an inference that many of them had been put together by OSR. Mr Lester admitted that certain schedules had actually prepared by OSR, despite the fact that his reports did not attribute authorship to anyone other than himself, and that he had not checked them for accuracy or reliability.

9.       Mr Lester made repeated assertions in his reports that appeared to be expressions of his own views. They were not attributed to anybody else. But in cross-examination it was revealed that these assertions came straight from discussions he had had with OSR’s factual witnesses. In some cases, the assertions related to matters which the factual witnesses had been cross-examined on, and on which they had no credible answers. This left the Judge with a view that Mr Lester had been used to try to “plug the gaps” in OSR’s evidence. He commented: “That is the complete opposite of what a responsible, independent expert is obliged to do. This subterfuge (for that is what it was) only became apparent during Mr Lester's cross-examination. It reflected very badly on him, as well as on [OSR’s factual witnesses]”.

10.   The Judge commented that this process reached its logical conclusion when Mr Lester refereed to a schedule that he said he had prepared, but which, in fact it turned out was prepared by OSR. Having accepted in cross-examination that he had not prepared the schedule, Mr Lester maintained that he had “checked and approved it”, but, when pressed, revealed that what he meant by that was that he had discussed the schedule with one of the OSR’s factual witnesses, and accepted (uncritically, it would appear) what he had said about it.

11.   Following on from this, Mr Lester 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.

12.   Finally, Mr Lester confirmed to the Judge that he had never considered valuing the line items by reference to fair and reasonable rates. The Judge noted that Mr Lester “seemed almost proud that he had not embarked on that exercise”. In the Judge’s view, this omission made the entirety of the valuation exercise Mr Lester had carried out of no value, because he had not, even as a cross-check, investigated whether the figures he was “so carelessly promoting” were actually fair or reasonable!

In summarising his conclusions about Mr Lester’s evidence, the Judge concluded that Mr Lester had allowed himself to be used as OSR’s “mouthpiece”, and that this approach “made a mockery of the oath which Mr Lester had taken at the outset of his evidence”.

Positive lessons

So, what are the positive lessons that can be learnt from this most unfortunate case? The “how to’s” as opposed to the “how not to’s”. They are perhaps a little more prosaic than the Judge’s defenestration of Mr Lester, but I suggest they boil down to these:

1.       Always try to select an expert who has experience in providing expert reports and giving expert evidence. Do not ever be afraid to ask the expert about their experience. If their experience in giving evidence in court, and being cross-examined, is limited, don’t be afraid to provide them with appropriate training[4] in advance of the hearing.

2.       Expert witnesses must apply their independent expert analysis to the information they are asked to assess. They should never simply regurgitate information provided by others in an unthinking and uncritical way, or (worse still) portray that information as their own work product when it is not. If the expert relies upon information or analysis carried out by others, they must correctly attribute the work to that other person, and explain the basis upon which they have verified its accuracy.

3.       Experts should always be provided with the opposing party’s relevant witness statements and evidence. They should be asked to review and consider both sides of the case (as it relates to their area of expertise). It is a fatal mistake to assume that all of the evidence adduced by one side will be accepted, and not to carry out an independent analysis as to what the position could be if it is not.

4.       Experts have a duty to confer. In New Zealand, the duty is enshrined in clauses 6 and 7 of the Code of Conduct for Expert Witnesses in Schedule 4 of the High Court Rules (the Code). Experts must comply with any direction of the court to confer with another expert, and must try to reach agreement, and prepare and sign a joint witness statement if required. When conferring with another expert witness, the expert must exercise independent and professional judgment, and must not act on the instructions or directions of any person to withhold or avoid agreement.

5.       Expert witnesses should always be provided with a copy of the Code, and must confirm that they agree to comply with it. That requires more than paying lip-service to it. Experts, and those instructing them, must ensure that they are fully familiar with the Code and will comply with its intent. I encourage lawyers instructing experts, regardless of the expert’s seniority, to discuss the provisions of the Code with them, and reinforce the expectations set out therein (in a respectful way, and without telling the expert how to do their job!)

6.       An expert’s evidence should be grounded in the facts; i.e. in reality rather than the abstract or hypothetical. If information used by an expert in their analysis bears no relation to what actually happened, their evidence will often be perceived to have an air of unreality and bias to it. That will weaken the very case they have been engaged to give evidence about.

7.       Experts must take great care in the preparation and presentation of their reports and evidence. Their reports should be carefully checked, and any errors corrected before the evidence is exchanged. If errors in their report are detected by the opposing party’s experts, they should be acknowledged and corrected. An appropriate and responsible concession is one of the best ways to enhance the perception of reliability and credibility of the expert in the eyes of the court. A stubborn refusal to concede an obvious and reasonable point will do the opposite.

8.       One of the key roles of an expert is to educate and inform the court. In the words of Lord Justice Jacobs in Rockwater Ltd v Technip France SA[5]:

“The experts come as teachers. What matters is how good they are explaining things”.

9.       Experts should never, under any circumstances, attempt to mislead. To do so is a fundamental breach of their duty to the Court, and fatal to their credibility.

10.   Finally, it is usually helpful to remain in the witness box until end of the cross-examination! I am not without sympathy for poor Mr Lester, as cross-examination can be a brutal experience. But, if experts allow themselves to be used in the way Mr Lester did, the outcome is inevitably going to be a bad one.

[1] With the very talented Toni Brown of K3 Legal.

[2] [2015] EWHC 3074 (TCC).

[3] At [80].

[4] Not coaching. That is a topic for another day.

[5] [2004] EWCA Civ 522.