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The parties cannot agree whether a cow that is stuck in the mire will moo

Sometimes you see a judgment on BAILII and your heart sinks, not because of the subject matter of the case, but just the length of the judgment. I suspect I’m not alone in thinking that, nor was I the only one to experience that sinking feeling when I saw Stuart-Smith J’s judgment in the Ocensa Pipeline Group Litigation. At 1,885 paragraphs long, it’s a modern day equivalent of Tolstoy’s War and Peace (Wikipedia tells me the first edition of that book had 1,225 pages).

Apart from word count, I doubt we’ll find many similarities between the two:

  • Tolstoy wrote about the history of Napolean’s invasion of Russia and its impact on “Tsarist society, through the stories of five Russian aristocratic families”.
  • Stuart-Smith J was considering the consequences of laying a pipeline in Colombia in the mid-1990s, where the litigation involved 109 claimants (from 73 farms), each of whom claimed that the pipeline caused damage for which they should be compensated.

Stuart-Smith J had a trial bundle of some 135,000 pages (that is more than 110 of the original War and Peace books), of which the expert evidence occupied 45,000 pages (that’s about 37 books!). It is this aspect of the judgment that interests me and is, I have to confess, the only part that I’ve looked at. It starts at paragraph 494, as the index helpfully points out (and hyperlinks you to).

Expert evidence

Expert evidence and, in particular, an expert’s performance in court, is a topic that I have returned to a number of times over the years, usually to highlight the perceived weaknesses with an expert witness’ evidence in the witness box. Not so long ago I looked at Coulson J’s views of the quantum experts in Van Oord UK Ltd and another v Allseas UK Ltd. Prior to that, I had considered Akenhead J’s judgment in Weatherford Global Products Ltd v Hydropath Holdings Ltd and othersHowever, it isn’t always about performance, as my piece on the judgment in British Airways plc v Spencer and others demonstrates.

Expert evidence in Ocensa

In Ocensa, the parties called expert evidence on a number of matters that we rarely see in TCC judgments, like:

  • Agronomy, which is “the science of soil management and its impact upon crop and vegetation production”. This involved looking at how the claimants’ farmed the land and the pipeline’s potential impact on crop production.
  • Fishing and aquaculture.
  • Veterinary science, including on cattle rearing in the tropics, overgrazing, milk production and what to do when cows “get stuck in the mire” and whether they moo (or low) when they do.

More familiar sounding topics included geotechnology and hydrology (which is to do with water courses), and pipeline project management.

The judgment contains quite a number of criticisms, especially of the claimants’ experts, but it wasn’t all bad news:

“Each side made trenchant criticisms of the other party’s experts. Some of those criticisms were well founded… With the exception of Mr Willis (called by the Claimants on the subject of Pipeline Project Management), each expert had something to contribute and I reject the various submissions that I should discount the evidence of the expert entirely.”

The judge also had a degree of understanding about the difficulties some of the experts faced:

“I accept without hesitation that the experts have had to confront highly unusual, if not unique, difficulties because of the remoteness, climate and security situation affecting the areas where the Claimants live. The climate has meant that visits have had to be scheduled to cover the wet and dry seasons; while the security situation has meant that visits to properties have been delayed and, when they have happened, have had to be shorter than would otherwise have been undertaken.”

I guess a visit to Columbia isn’t the same as a site visit to your more typical British construction site, even in the depths of winter or after a period of inclement weather!

The judgment also includes comment on something described as the “Claimants’ Inter-disciplinary Approach”. Essentially, it seems the claimants’ experts had co-operated with one another a bit too much:

“…extending to the mutual provision of reports with the intention and effect that one expert’s expression of opinion was either supported or based upon work carried out by another. There were numerous occasions where one expert would refer to specified passages in the reports of another, apparently adopting them as an integral part of their own reasoning and opinion.”

However, this was misleading and heavily criticised by the judge, with some instances of this type of co-operation described as “startling”, especially because, in some cases:

“…the Claimants’ experts included in their reports statements and information which had been provided to them by the lawyers and which they did not independently verify.”

I’m not surprised that the judge thought that such behaviour would “cast doubt on the integrity of the affected reports” and that, more broadly, it cast doubt “on the integrity of the expert evidence process as a whole”. Despite this, as the experts had given evidence over many days, he was able to draw the conclusion that it would be wrong “simply to jettison the entirety of any expert’s evidence because of this episode”. I’m sure on another day, with different facts, that outcome could have been so different (just like Coulson J found in Van Oord).

The quotes and comments in the judgment are far too lengthy to repeat here and, if you have the time (and inclination), the section on expert evidence is well worth a look.

I will leave you with one particularly striking quote about the claimants’ pipeline project management expert:

“The Claimants called Mr Willis, ostensibly as an expert in pipeline project management. As was made painfully clear in the course of his cross-examination, he was no such thing, not least because he had never been the project manager of a construction project during his career… His report, as originally provided and subsequently amended, was largely used as a vehicle to rehearse the Claimants’ case; but it did not advance it. By the end of a further immaculate cross-examination by Mr Lewis, there was nothing left that could properly be called expert opinion evidence from Mr Willis upon which the Claimants could properly rely… Mr Willis added no expert opinion evidence that assists the Court.”

Ouch.

MCMS Ltd Matt Molloy

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