Two recent judgments caught my eye and, in particular, the references to an expert who appeared as an expert witness in both judgments.
For those that did not notice, the expert was instructed on behalf of:
- The claimants, the Trustees, before HHJ Keyser QC in The Trustees of Ampleforth Abbey Trust v Turner & Townsend.
- The defendants, Mr Mackay and DMW Developments, before Akenhead J in the 660-paragraph judgment in Walter Lilly v Mackay and another.
Both judgments act as a stark reminder of the difficulties expert witnesses face and the perils of adopting a “not proven” stance. Given I wrote about expert evidence in professional negligence claims last week (and the use of experts in adjudication a couple of weeks earlier), it seems entirely appropriate to highlight some of the things that both judges said about the expert evidence before them.
The Trustees of Ampleforth Abbey Trust v Turner and Townsend
Here the court held that the project manager, Turner and Townsend, was in breach because it had failed to ensure the Trust entered into a building contract with the contractor (the entire building works were carried out under a series of letters of intent). This meant that when the contractor’s works were delayed, the Trust had no way of claiming liquidated damages from it. The Trust successfully pursued the project manager for the losses it suffered as a consequence.
HHJ Keyser looked in detail at the standard of skill and care that a professional person is required to use, noting that it is:
“The standard of the ordinary skilled man exercising and professing to have that special skill”.
Here the Trust’s expert was criticised by the project manager’s counsel for lacking the necessary experience as a project manager (for example, he’d only worked on one project where a letter of intent had been used). It was also suggested that the manner in which he had approached his expert duties meant the court should discount his evidence “in its entirety”. The court’s attention was drawn to Akenhead J’s criticism in Walter Lilly (see below).
However, the judge rejected all of these criticisms, finding that the Trust’s expert did have considerable experience of project management and that he gave his evidence in “good faith as a witness” and was “candid and objective”. On the question of the standard to be expected of a project manager, he preferred the Trust’s expert’s evidence to the project manager’s expert. The judge was also concerned with certain aspects of the project manager’s expert’s evidence, which was described as “unsatisfactory”.
Walter Lilly v Mackay and DMW Developments
I’m sure by now that everyone is familiar with this judgment, given so much has been written in the construction press about the judge’s deliberations on global claims (you can still claim them) and the contractor’s extension of time claim (it was entitled to a rather long extension, loss and expense, head office overheads and profit). Most commentators have focused on the court’s rejection of the City Inns v Shepherd Construction idea of apportioning concurrent delay in extension of time claims. However, what the court said about expert evidence is equally of note.
In contrast to HHJ Keyser QC’s view of the Trust’s expert, Akenhead J formed an altogether different opinion. He “preferred [the contractor’s delay expert] in almost every respect”, finding he adopted a much more objective approach than the subjective one of Mr Mackay’s expert.
He was also dismissive of Mr Mackay’s expert’s approach in:
- Suggesting aspects of the contractor’s claim were not proved. Akenhead J indicated that it is inappropriate for an expert to suggest a party has failed to prove or demonstrate an aspect of its case.
- Determining “the most ‘significant’ matters preventing practical completion” in a way that reflected what his client thought was significant.
- Descending into “the arena of disputed facts and liabilities in which he was not the relevant expert”.
- Relying on conversations and information that was not in evidence.
What do I conclude from this?
It is very easy for people to cite the duties set out in CPR Part 35 and its Practice direction, PD35 (to help the court on matters within your expertise and to act in an objective and unbiased way), but I think these two judgments demonstrate how difficult in practice it can sometimes be to act as an expert witness.