The case of the disappearing expert
Van Oord UK Ltd & Anor v Allseas UK Ltd  EWHC 3074 (TCC) (12 November 2015)
The case of the disappearing expert
This was an English law commercial dispute in relation to laying of gas pipeline. Expert evidence was required on quantum. The claimant’s expert was a Mr L, a quantity surveyor. It was Mr L’s first time giving expert evidence.
Despite trying to give Mr L the benefit of the doubt, the court concluded that his evidence was entirely worthless. There were a total of twelve different reasons for that conclusion1:
1. He took client’s case at face value and did not check the supporting documentation.
2. He prepared his report only by looking at the witness statements prepared for his client, and not at the other side’s statements. Even went so far as to cut and paste controversial parts of his client’s statements into his report.
3. Mr L stuck to valuing on the full basis of his client’s claim and refused (despite the judge’s requests to the contrary) to value the claim on the basis of the other side’s case.
4. Mr L based his quantum of loss on made up or calculated rates, rather than the actual costs incurred by his client. This created the “overwhelming impression” the claim was potentially a “try-on”2.
5. In cross examination he eventually accepted numerous of the errors and criticisms put to him. These admitted errors fatally undermined both his credibility and the claimant’s claim.
6. Due to these errors, in cross examination, he disowned his own reports.
7. In cross examination he accepted his reports were confusing and misleading.
8. He appended documents to his original report which he had either not looked at all, or had certainly not checked in any detail. Some schedules to his report had been prepared by or for the Claimant, and yet attributed to Mr L in the report.
9. Repeated assertions in report as his own which were in fact from the claimant’s witnesses. In this way, Mr L was used to try and plug the gaps in the claimant’s evidence which had been exposed.
10. Parts of the joint expert evidence ostensibly prepared by Mr L were in fact prepared by the claimant.
11. Accepted in cross examination 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. Failed to value various items in report by reference to fair and reasonable rates, sticking instead to the rates favouring his client.
Mr L’s evidence “made a mockery of the oath which Mr L had taken at the outset of his evidence”.3
Additionally, during short break for the transcribers, Mr L left the witness box, and the courtroom all together, never to return. This confirmed the court’s opinion of his evidence4.
His evidence fundamentally compromised the value of the claimant’s claim.
As an aside, it also appears the claimant’s evidential problems did not end there. Their factual witnesses were also decidedly lacking5. They:
- “Regretfully” avoided the questions put to them.
- Despite a number of interventions from the court they stuck to what appears to have been a deliberate strategy of long, rambling answers designed to avoid the question and put their case in the best possible light, regardless of the truth.
- “Were as unconvincing a group of factual witnesses in a commercial claim as I have ever encountered.”
Don’t do what Mr L did!
This is perhaps one of the more egregious examples of an expert witness failing in his duties to the court (and his client). It is a salutary lesson in what not to do as expert witness.
Such a performance is unlikely to be put down to mere inexperience, and it shows how readily uncritical and defective expert evidence will be found out during cross examination. His evidence would likely have had a devastating effect of this on client’s case, although given the substantial evidential problems encountered by the claimant more generally the effect of this on the overall case was difficult to determine.
To see how we can potentially assist in the training of expert witnesses, including training on expert witness duties, please contact us.
1 From para 80.
2 At para 84.
3 At para 93.
4 At para 80.
5 At para 70.