Practical Law

This post is yet another in my (not so) occasional series about expert evidence and expert witnesses. It could be called, “Is it time for some experts to throw in the towel?”

Last time I looked at experts, I said that Leggatt J’s judgment in Hirtenstein v Hill Dickinson was one to read if ever you wanted to see how not to be an expert witness. A similar thing could be said about Weatherford Global Products v Hydropath Holdings Ltd and others, where Akenhead J doesn’t pull any punches.

Weatherford Global Products v Hydropath Holdings Ltd and others

This case was before Akenhead J at the end of last term. It was all about an electronic gizmo used to prevent scale building up on the inside of oil pipes. Several parties (including the inventor) entered into a number of agreements to licence, manufacture and supply the electronic gizmo to the oil and gas industry, mainly in North America. The parties fell out over certain safety concerns and whether the gizmo was fit for purpose and, ultimately, the matter came before the TCC, with claims and cross-claims flying around.

The judgment starts off with the judge noting that the case had been “bedeviled by a number of problems”, and complaining about the:

• Amount of contemporaneous documents in the trial bundle (only about 1,000 out of 15,000 pages were relevant and there was no core bundle until the judge created one for himself).
• Length and relevance of the witness statements (one was 206 pages long and comprised mainly of the witness’s thoughts on documents and events he had no direct knowledge of). The Commercial Court’s practice of limiting such statements to 30 pages was positively noted.
• Length of counsels’ opening and closing written skeletons (for example, one was 113 pages, others were 108 pages, 67 pages and 100 pages long). They were “unnecessarily long”, repetitive and discursive. Counsel should appreciate the “need for conciseness”.
• Assumed belief that the judge was a “specialist electronics and electrical engineer” and would understand how the technology of the electronic gizmo worked, without explanation. He suggested the parties should include explanations of various technical matters “in words of one syllable”.

On all these points, I have some sympathy with Akenhead J. As he says, parties should understand that judges (and, in my case, adjudicators and arbitrators) have to read the material put before them. If that material is too long, it is difficult to deal with it in the time allowed and more difficult to focus on what the real issues are.

The expert evidence

Akenhead J’s comments didn’t stop at the above matters. He also had a few choice words to say about the parties’ experts, set out in a helpful section near the end of the judgment (paragraph 181 to be precise).

Three points particularly stand out from the impression Akenhead J formed of the various experts called to address the claim:

• Experience counts, both in terms of the expert’s background and suitability for the role of expert in a particular case, and also in terms of having acted as an expert before. For example, one of the claimant’s experts was described as being “far more the qualified… with weighty academic backgrounds both as a physicist and an electrical engineer”, the other as having “specific experience over many years in the oil and gas industry”. In contrast, the defendant’s experts may have had the necessary qualifications, but were both found to be inexperienced as experts in litigation, with one described as “nervous”. Perhaps the ultimate faux par was for this expert to say that he’d changed his opinion on a matter that formed part of the experts’ joint statement “in the shower before I got into my taxi this morning”. As the change of mind appeared to be without reason, this lead to Akenhead J saying it “seriously undermined his reliability”.
• While experience may be important, the instructions to the expert are equally important. A badly briefed or supported expert may ultimately not help the case at all. For example, one of the defendant’s experts failed to identify in his report all of the documents and information that he had clearly been provided with and relied on, the other had clearly been inadequately briefed and not shown certain documents. As both experts were inexperienced, they may not have realised the significance of this. Those instructing them should have.
• Finally, demeanour in the witness box counts for a lot. In contrast to the comments about the defendant’s experts’ inexperience, one of the claimant’s experts was found to be “impressive… quietly spoken but straightforward and down to earth”, the other gave his evidence in “a very measured way; he was not prone to exaggeration” and was the most impressive of all the experts and “eminently credible”.

Akenhead J was also similarly unimpressed with another of the defendant’s experts (who is discussed much earlier in the judgment), describing him as arguing rather than opining on a point and failing to include in his report analyis or explanation:

“…the court is not and would not be assisted by such bland assertions particularly from an expert one of whose main jobs is to assist the court.”

Overall, the expert was “unconvincing” and submitted a report that was “seriously lacking in detail, explanation or analysis”. Akenhead J concluded his review with the following:

“I can only assume that relatively shortly before he gave evidence he appreciated that he could not support much of what he had said in his report, short, simple and unparticularised as it was.”

Surely those are words that no expert wants to have written about themselves.

Witnesses of fact also scrutinised

As he often does, Akenhead J also set out his thoughts on the witnesses of fact. Again, one witness in particular attracted considerable comment, being found to be a “most unsatisfactory” witness, who was “very quick to speculate” about what may have happened and could not support his evidence with contemporaneous documents. He was also “immensely defensive about his invention and would not brook any criticism or suggestion that there might be something wrong with it”. His defensiveness continued throughout the trial, even disagreeing with his own expert on one issue.

Another witness was described as bright and articulate, but had commented on events that occurred before his involvement and gave “expert views” about matters in issue in the case. Although the judge speculated that this may have been because the lawyers had been “putting words into his statements”, he spoke as to the truth of his statements, even though he couldn’t know if certain parts were true or false. Akenhead J suggested he was “misguided and naive in his evidence giving”.

By contrast, the claimants’ witnesses were straightforward, honest and thoughtful. They were also described as credible, along with the witnesses for the fourth to sixth parties in relation to the counter-claim regarding confidential information. Akenhead J noted that no “smoking gun” type of document had been found to suggest the witnesses were lying or being dishonest.

As I said at the start, experts can learn a lot from this judgment. I think that, on reflection, I can extend that to witnesses of fact and, on occasion, instructing solicitors.