It never ceases to amaze me how many reported judgments there are where the expert evidence of one of the parties is criticised by the judge. My last post referred to the views of Peter Smith J in Mengiste, and his conclusion that:
“In this case, there was no doubt that [the claimant’s expert] was one of the worst expert witnesses ever to give evidence before me.”
While that case was proceeding in the Chancery division, it seems that the TCC judges have also been looking at the quality of expert witnesses again. This time, it was Akenhead J in Igloo Regeneration v Powell Williams Partnership.
Igloo Regeneration v Powell Williams
This was a case about alleged professional negligence. The defendant firm of surveyors, Powell Williams, was employed in early 2003 to carry out a building survey of an old mill building in Leeds by an institutional purchaser (collectively called Igloo in the judgment). The price agreed for the survey was just over £6,000, the price paid for the mill was in the region of £16 million. The mill had been converted previously to provide office accommodation. At the time of the conversion (and subsequently) certain strengthening works were carried out to the mill.
The building survey was required to establish the current condition of the mill, including comments on the roof, walls and roof structures, and to provide a schedule of “planned preventive maintenance”.
The surveyor’s report noted some cracking, which he suggested was recent in origin, and may have been caused by increased loading (during the office conversion, a large safe and server room had been installed on the fifth floor). The surveyor took photographs and recommended that questions be asked of the vendor about floor loading, engineers reports and the like. The surveyor also recommended that a structural engineer be appointed to review the information coming from the vendor and to inspect the building’s piers (which happened).
Subsequently, monitoring of the building indicated that the cracking was getting worse, but there didn’t seem to be much urgency from the new owners, Igloo. When they were advised in early 2007 that “remedial work is now urgently required”, some propping was put in place, although it seems the cracking continued to get worse. Another period of “lack of urgency and direction” followed, and some repairs were eventually started in late 2008. Further intervention works were started in June 2011.
The judge’s views of the experts
Against that backdrop, Igloo started proceedings against Powell Williams. When the matter finally came before Akenhead J via Chester’s Chancery division and the Manchester TCC, he had a number of striking things to say about the experts. For example, with regard to the engineering experts, he said:
- Mr Lovell (claimants) was inexperienced in comparable survey work and “over enthusiastic in his clients’ cause”, albeit he fell short of being partisan. He had to “row back in many respects from what he agreed… in the first engineering experts’ Joint Statement”.
- By contrast, Mr Brown (defendant) was “very much more authoritative… much more experienced in pre-purchase engineering reports”. He was a more experienced witness and “spoke with confidence”. He was “simply, much more credible than Mr Lovell”.
The judge was also unimpressed by the fact that Mr Lovell and Mr Brown fell out with each other and served a “voluminous second joint statement” that was little more than a “long and partly repetitive pleading”.
With regard to the quantity surveying experts, the judge said:
- Mr Frood (claimants) also lacked experience as an expert witness, “albeit all experts have to have a first case”. He failed to comply with his own instructions initially and did not consider it necessary to explain how he had calculated certain figures. This was a lack of transparency the judge was not impressed by, finding that that part of his evidence was “simply wholly unconvincing”. A failure to allow the defendant’s expert to have access to a database used in his report was another example of a lack of transparency.
- Mr Renuadon (defendant) was “an extremely decent, straight, open, experienced, hands-on and ‘old school’ quantity surveying expert who thoroughly knew his job and was very impressive… where they differed, I much preferred the evidence of Mr Renuadon”.
The judge thought it was surprising that there was “such little agreement on the figures” and their joint statement was unhelpful as it simply incorporated what was in their reports.
Before anyone thinks I’ve been unduly unfair in these extracts, I suggest you review paragraphs 72, 73 and 79 of the judgment for yourself.
Surveyor wasn’t negligent
It is perhaps unsurprising that the judge concluded the defendant had not fallen below the standard of care expected of surveyors retained to do what they had been retained to do. I suspect that once you read the judge’s comments, you’d think the odds were pretty low on who the winner was going to be too!
Being an expert
Everyone accepts that experts have to start somewhere (as Akenhead J did here), that they need to learn how to be experts. However, in practice, it can sometimes be difficult to act as an expert witness. As Jonathan noted last year:
“In my experience, experts tend to agree on the black and white issues. It is the ‘(50) shades of grey’ issues they struggle with – the points that are arguable either way. In such instances, experts tend to lean towards their respective client’s case.”
The difficulties an expert may encounter reinforces the importance of an expert understanding the requirements of CPR Part 35, its practice direction (PD 35) and the experts’ protocol. They also need to be familiar with the requirements of their professional body. For example, RICS’ Practice Statement on providing expert evidence requires the expert to:
“set out the facts fully and give truthful, impartial and independent opinions…, whether or not they favour your client…Special care must be taken to ensure that expert evidence is not biased towards those who are responsible for instructing or paying you.”
Enough said.
“It has been interesting.”
That is how Akenhead J concluded the costs judgment in this case, awarding the defendant indemnity costs running from the adjourned trial in the Chester District Registry in November 2012 right through to include an eight-day trial in the London TCC in May 2013. I reckon the claimant is going to be liable for a lot of costs for such a long period.
As you can see from my post above, in the substantive judgment, the court was critical of the claimant’s experts. That continued in the costs judgment. I was particularly struck by the opening of the judgment, where the court suggested that to award indemnity costs, there had to be “conduct which takes the case out of the normal run of the mill”. It seems such conduct existed. For example, the claimant’s engineering expert, Mr Lovell, made concessions in a joint statement that undermined the claimant’s case, and then was “rowing back from” that position subsequently. The court accepted that he was an inexperienced expert, who was “over enthusiastic in his client’s cause”. Another factor was the evidence from the claimant’s expert quantity surveyor, Mr Frood, which lacked transparency (both in the written and oral evidence).
As someone who often acts as an expert witness, I see this judgment as a clear example of the traps experts can fall into. It offers a cautionary tale to us all.