REUTERS | Ilya Naymushin

Experts who seek to defend the indefensible

The court’s criticism of the parties’ expert witnesses seems to continue unabated. It is a topic I have looked at many times, not least back in August when I discussed Akenhead J’s judgment in National Museums and Galleries on Merseyside v AEW and PIHL/Galliford Try. In all the criticism leveled at the experts, one particular comment stood out for me; the fact that AEW’s expert architect admitted in cross-examination that he was “seeking to defend the indefensible” for those instructing him.

Criticism of the experts has arisen again, this time in the context of an expert who just didn’t have the appropriate expertise.

Proton Energy v Lietuva

HHJ Mackie QC gave judgment in Proton Energy Group v Orlen Lietuva, a contractual dispute between a business that traded oil and gas-related products (Proton) and a petroleum refining company (Lietuva). The issue was whether the parties had entered into a contract and, if they had, what were its terms.

At trial, expert evidence was called to determine whether a contract was concluded. The court held that there was a contract, which Orlen Lietuva repudiated, giving rise to Proton’s damages claim. However, despite the need for expert evidence, the judge said that he drew “no relevant conclusions” from it and would have referred to it less, if it hadn’t been relied on by Orlen Lietuva and been so decisive at an earlier summary judgment application.

Expert didn’t have appropriate expertise

Strong words indeed, but what led the judge to make these remarks?

Orlen Lietuva had instructed Mr Traver, who was described as “a good witness in that he was honest, highly qualified in the oil industry in general and detached and straightforward in his answers”. Quite a contrast to some of the things Akenhead J said about the experts in National Museums v AEW.

What let Mr Traver down was his lack of relevant experience. While he had been a “a consultant to the oil and gas industry, advising on strategic corporate decisions and acquisitions of oil field properties”, he had “never concluded a trade for crude oil mix – or for any products” and had “never worked for a trading company”.

It seems this was his undoing, at least in the judge’s eyes. It led to Mr Traver’s evidence being “hypothetical and involved taking a view on contractual interpretation in a context where there is no claim of custom and usage”. The judge felt Mr Traver’s principles were “a set of impressions, not based on firm evidence or solid experience, which he then applied to the facts of this case to reach conclusions”.

Teaching your grandmother to suck eggs

This judgment once again highlights the need for parties to instruct the appropriate expert for the job, one with relevant experience based on the issues in dispute. I would have thought that statement goes without saying, a bit like teaching your grandmother to suck eggs. However, it seems parties do need reminding, since they appear to keep tripping up when it comes to expert evidence.

The judgment doesn’t mention whether this was the first time Mr Traver had given evidence, although the judge acknowledged it wasn’t his fault that his evidence was of such little assistance to the court. In National Museums v AEW, the expert architect was giving evidence for the first time and so perhaps could be forgiven, just a little bit, for the approach he took to that evidence.

A final thought

Issues also arose regarding Proton’s expert, Mr Sepkes. However, these were less to do with his performance as an expert (he was described as “straightforward and honest but also forthright”), and more about his independence from Proton’s solicitor, Mr Davies. This was based on the working relationship the pair had, which included money and which was described as “a closer one than usual”.  The court suggested Proton’s solicitors should have appointed an alternative expert or provided full disclosure of the link between Mr Sepkes and Mr Davies.

Food for thought indeed.

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