REUTERS | Issei Kato

Expert evidence and kitchen sinks

Outside of renovating a kitchen, in construction circles we usually talk about kitchen sinks in the context of a claim where one of the parties has thrown everything in to it, the proverbial kitchen sink claim. In my experience, kitchen sink claims often crop up in adjudication, featuring in the law reports when the adjudicator’s decision is being enforced and one of the parties suggests the adjudicator breached the rules of natural justice in some way by dealing with it.

I therefore had a wry smile when I saw Leggatt J in the Commercial Court recently refer to a claim that included a “vast array of fittings and accoutrements” which were “palpably unjustifiable”, including the kitchen sink. It was one of the many items that had been included on a spreadsheet of repair costs prepared by the claimant’s engineering expert. I have Michael Mendelblat to thank for drawing my attention to this one.

This post is yet another in my occasional series about the trials and tribulations of expert witnesses. In light of two recently published pieces of guidance aimed at experts (RICS’ Surveyors Acting as Expert Witnesses and the CJC’s Guidance for the instruction of experts in civil claims 2014, which Jonathan has considered), one wonders for how much longer we will have these cases to discuss. However, until then, if ever you wanted to see how not to be an expert witness, the judgment in Hirtenstein v Hill Dickinson is one to read!

Hirtenstein v Hill Dickinson

Mr Hirtenstein bought a yacht from Mr Candy for US$5.5 million without a survey or sea trial. Shortly after it set sail and just 12 miles from land, one of the engines failed. An insurance claim followed, and then a claim by Mr H against his solicitors for professional negligence in not obtaining a personal guarantee from Mr C regarding the yacht’s condition. Ultimately, the judge held that Mr H would have purchased the yacht regardless of whether he had a personal guarantee. As such, the solicitors did not cause his loss and Mr H was only entitled to nominal damages.

Expert evidence under the spotlight

It is what happened at trial that is the really interesting part. Both parties adduced expert evidence on a number of issues, which the judge said was “extensive and not always helpful”, calling an engineer (to look at the cause of the engine’s failure and the cost of repairs) and a valuer (to value the yacht).

It was Mr H’s engineering expert (Mr Smith) that came in for the most judicial criticism. As I mentioned above, Mr Smith included a number of items (including the kitchen sink), which the court said Mr H was not entitled to claim for. The galley items and other “fittings and accoutrements” were part of an upgrade Mr H undertook at the same time as remedial works were undertaken (and Michael looked at the mitigation issues arising from that). For example:

  • The judge said that Mr Smith had been “careless” in the way he approached his task of determining the cost of repairs. He could not explain why items that were clearly upgrades were included as repairs, other than to say he assumed that the items were necessary because they had been purchased.
  • Mr Smith attached an appendix to his report itemising some US$734,000 odd of expenditure that he was “completely unable to explain” and claimed to have no knowledge of. The judge said that as Mr Smith did not take the opportunity to explain why the appendix was there, he could only assume “there is no explanation that exonerates Mr Smith of incompetence.”

Harsh words indeed, but the judge continued:

“On his showing in this case I do not consider [Mr Smith] is a fit person to act as an expert witness.

I can attach no credence at all to the figures put forward by the claimants and rubber-stamped by Mr Smith for the alleged cost of repairs.”

The valuers hardly fared better, with:

  • Mr H’s valuer, Mr Gilmour’s evidence described as “something of a moving target” as he kept producing new valuations and refining existing valuations.
  • Mr C’s valuer, Mr Chettleborough, also considered to be of little assistance to the court. He did not explain how he reached his valuation of the yacht in his report and could not articulate the process he followed. It was as if he had put “the available information into a black box from which a figure emerged based entirely on his gut feel”. That amounted to saying, “trust me, I am an expert valuer”. It was not acceptable to take an expert’s opinion on trust.

The judge suggested that experts’ opinions “need to be supported by a transparent process of reasoning”, if the court is to attach any weight to them.

Ouch!

Factual witness evidence also under the spotlight

Finally, I note that the judge also commented on the factual witness evidence, suggesting that just because one witness had a “confident and honest recollection of what was said”, that didn’t make it safe to suppose that his evidence was “a reliable guide to the truth”. Instead, the judge based his findings “firmly on the contemporaneous documentary evidence and on independently established facts”.

I’ve looked at factual witness evidence before too, and it was Leggatt J who was the judge then as well.

CJC expert guidance

As part of the Jackson reforms and the emphasis on proportionality and cost budgeting, the guidance now contains warnings about the fact that costs sanctions may apply if an expert fails to comply with CPR 35, PD 35 or a court order. Although there was no suggestion in this case of any breach, I wonder if we will start to see judges making those types of orders in circumstances like this case, where they make such harsh comments about the expert evidence.

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