Practical Law

For those of who have a weekly blog to populate with content, the court’s summer recess can prove to be a challenging time. It leads us to cast our net further afield looking for ideas and cases to highlight. That is why, this week, I’m looking at two cases from August, one a personal injury claim from the County Court in Leeds, the other an intellectual property dispute from the Chancery Division. What both have in common are some choice words about the parties’ expert evidence. I know Jonathan has looked at this topic twice in recent months but, as I said, we’ve had the summer recess and these comments are just too bloggable to be ignored!

Philip Hatfield v Drax Power Ltd and Simon Gibson Transport Ltd

First up is HHJ Belcher’s judgment in Mr Hatfield’s dispute with Drax Power Ltd and Simon Gibson Transport Ltd, regarding injuries he sustained in a road traffic accident on a site road at Drax’s power station. Mr Hatfield was an experienced HGV driver when the lorry he was driving (owned by Simon Gibson Transport) crashed, causing an accident in which Mr Hatfield lost part of his right arm. Mr Hatfield’s case was that the road was slippery because of the ash slurry that was on it. This was a breach of certain workplace regulations. He also alleged the vehicle he was provided with was in breach of certain equipment regulations. 

As one might expect when there are allegations of this nature, the judgment deals with the factual evidence and the state of the road at the time of the accident. However, it is the expert evidence that I’m interested in. Each party called one expert. Mr Hatfield called Professor Vantsevich, who prepared a highly technical report dealing with issues such as tyre circumference and the effect it has on the handling of a vehicle, and also whether a wet and muddy road surface would affect a vehicle’s handling.

You know when you read a judgment that it isn’t going to bode well for an expert when the judge starts by saying that she was in no doubt that the expert (Professor Vantsevich):

“… had no proper understanding of his duties as an expert.”

She went further:

“In the course of cross-examination, he accepted that the theory he was putting forward was precisely that, theory and only one possible explanation for the accident. He said that he simply responded to the questions in his instructions. He made no attempt to evaluate the alternatives and, in particular, the alternative explanations for the accident being put forward by the defence experts.”

It got worse for the Professor:

“[His] evidence was extraordinary in its presentation and, frankly, shot through with breath taking arrogance. His stance throughout was that he was right and everybody else was wrong.”

I suppose he didn’t help himself when he wrote in the experts’ joint statement things like:

“… [the defendants’ experts] need to take an undergraduate university course on vehicle dynamics to understand the assumptions and their relevance to the circumstances of the incident…

Would like to point out that the two [defence] experts also have problems with understanding both the second law and the third law of Newton…

…. encourages them to learn the engineering meaning of ‘possible’ and ‘probable’.”

The Professor’s performance in the witness box was also criticised. Again the judge makes the point that he “plainly felt he was right and everyone else was wrong”. She was also unhappy with his behaviour after he had given evidence, when he:

“… sat in the well of the court shaking his head from side to side, evidencing his disagreement, and, judging by his face, his disgust, with the evidence being given by Mr Mutch… I made it clear to Professor Vantsevich that that behaviour was unacceptable and whilst, on the whole, he managed to contain himself, I did catch him on further occasions shaking his head at the evidence given.”

That was a first for the judge, who said she had never seen such behaviour before and that it was conduct that was “wholly discreditable to an expert witness in our courts”.

Sadly for Mr Hatfield, he failed to prove his case against either of the defendants. Instead, the judge found his accident was the result of “driver inattention”.

Technomed Ltd v Bluecrest Health Screening Ltd and another

Second up is a database right and copyright infringement case, Technomed Ltd v Bluecrest Health Screening Ltd, heard by Deputy High Court Judge, David Stone, which was concerned with an internet-based electrocardiogram (ECG) analysis and reporting system called the ECG Cloud. I bet you can’t say that after a few beverages!

Apparently, the software allowed remote analysis of ECG readings. Technomed had provided ECG Cloud to Bluecrest, who subsequently switched its heart screening services to one of Technomed’s competitors (the second defendant, who traded as Cardio Analytics).

I have to confess to not reading the judgment – I don’t think I would have followed the technical detail of an IP/IT dispute. My attention was simply drawn to the judge’s comments about one of the defendant’s witnesses, Professor Mond, who was “presented as an expert witness”, even though his witness statement was a “brief six paragraphs”. These occupy a mere 12 paragraphs of the 152 paragraph judgment.

Compared to the comments made about Professor Vantsevich above, it is arguable that Professor Mond got off rather lightly.

The judge described the manner in which the Professor was appointed as unusual, as was the way he gave his evidence. I’ve not seen anyone refer to expert testimony being given by a mobile phone set to speaker mode before, but then perhaps the courts’ IT systems usually work and video links with Australia don’t normally fail. Does anyone else see the irony of an IT failure in an IT dispute??

What seems to have really concerned the judge was that the Professor’s company, Cardioscan, was in commercial discussions with the second defendant. It wasn’t that the Professor was reluctant to admit to this, because he wasn’t, simply that the defendants’ own counsel had not heard reference to this before his cross-examination. Having such a “common interest” with one of the defendants just isn’t the done thing. He wasn’t seen as being independent of the parties (something Cresswell J referred to in the Ikarian Reefer).

It was subsequently alleged that Cardioscan may also have a commercial relationship with Technomed. The judge said that having relationships with both parties:

“… didn’t make him more independent than his having a relationship with one party.”

He hadn’t disclosed this fact and had signed a sworn statement as to his independence from both sides. It was clear he hadn’t been instructed properly under CPR 35. All of this led the judge to attach no weight to his evidence.

Clear reminder of the experts’ role

Both of these judgments illustrate what happens when something goes wrong with expert evidence, either in one party’s choice of expert, the instruction of that expert or matters that the expert fails to disclose to the parties.

I think Jonathan made a number of good points when he looked at ICE v MMT and Bank of Ireland v Watts and, rather than reinventing that particular expert wheel, I’ll leave you to look back on his thoughts.