Practical Law

Countless generations have sung along to the Christmas carol, The Twelve Days of Christmas, with its simple lyrics and cumulative effect. We all know how it goes:

“On the first day of Christmas my true love sent to me
a Partridge in a Pear Tree.”

A new gift is added each day (turtle doves, French hens, calling birds, gold rings, geese a-laying, swans a-swimming, maids a-milking, ladies dancing, lords a-leaping, pipers piping and (finally) drummers drumming), although, perhaps, it is not so easy to remember after a little Christmas sherry!

There may not seem to be much of a connection between the carol and Coulson J’s judgment in Van Oord UK Ltd and another v Allseas UK Ltd (about the laying of an on-shore gas pipeline in the Shetland Islands), but bear with me on this one. 

Van Oord UK Ltd and another v Allseas UK Ltd

The facts in Van Oord UK Ltd are complex and detailed (as is the judgment, at just under 500 paragraphs), but it is worth mentioning a few brief details to explain who everyone is.

Allseas UK Ltd (AUK) was the principal contractor engaged by Total E&P UK Ltd to carry out both the offshore and onshore works involved in the laying of gas pipelines, which formed part of the Total Laggan-Tormore gas field development at Sullom Voe, on Shetland.

In November 2010, AUK engaged Van Oord UK Ltd and Sicim Roadbridge Ltd (OSR) to carry out the procurement, supply, construction, installation, flooding, cleaning, gauging and testing of pipelines, and certain on-shore works. Sicim Roadbridge Ltd was formed for the project (it was made up of an Irish civil engineering contractor (Roadbridge) and an Italian company that specialised in mechanical works (Sicim)).

The dispute between OSR and AUK concerned the onshore works element. It was valued at £10 million and involved claims for disruption and prolongation related to unforeseen ground conditions and AUK’s alleged failure to obtain permission to cross the Brent and Ninian pipelines, plus additional supervision costs arising out of a specific delay claim.

All this ended up in a lengthy trial in the TCC with lots of documents (over 70 lever-arch files) and several witnesses of fact and experts.

Witness evidence

I have looked at the performance issues that arise with regard to witnesses of fact and experts several times over the years. Usually, it is to highlight what the court has perceived as weaknesses with a witness’ evidence and performance in the witness box. As good an example of how not to perform (whether as a witness of fact or expert) was highlighted by Coulson J in this judgment.

In his customary frank manner, Coulson J set out his views which, for the individuals involved, will surely make for uncomfortable reading.

I have been a witness of fact in relation to events surrounding one of my own adjudication decisions (before Coulson J as it happens), but never in relation to events that took place on a project (and I wasn’t required to give oral evidence). I have also questioned witnesses in the context of an adjudication. Sometimes you feel that a particular witness is not really helping matters, rather that they are being evasive and trying to avoid answering your questions. Sometimes it is unclear why that is. As Coulson J noted here:

“…I regret to say that each of the four factual witnesses called by OSR endeavoured to avoid many of the questions put to them. Despite a number of interventions from the court to try and get them to do so, they stuck to what appears to have been a deliberate strategy of long, rambling answers designed to avoid the question and put their case in the best possible light, regardless of the truth…  they were as unconvincing a group of factual witnesses in a commercial claim as I have ever encountered.”

In contrast, four of AUK’s seven witnesses fared much better (Coulson J suggested he “did not derive much assistance” from the three claims consultants advising AUK):

“I considered that the evidence from the four AUK witnesses was much more important. It dealt with what happened on site. It was generally clear and concise. Although broadly in accordance with the documents they had prepared at the time, I found that the evidence of these four witnesses was unaffected by which side their answers ultimately helped.”

One witness in particular stood out:

“Mr Teal, freely gave evidence on which OSR now seek to rely. He was so helpful he even pointed out the relevant reference for the purposes of OSR’s cross-examination of him…

That Mr Teal was an obviously credible and helpful witness was recognised by both sides, because the closing submissions of both AUK and OSR sought repeatedly to rely on his evidence… I make no apology… for identifying Mr Teal’s evidence as the starting point (and often the finishing point as well) of my analysis.”

The expert evidence

It seems the parties elected to call quantum experts, but not another discipline. Mr Lester for OSR and Mr Kitt for AUK. Mr Lester is the focus of Coulson J’s comments on the expert evidence. While both experts are described as having an “unenviable task”, it seems Mr Kitt coped better with the task. Mr Lester had not been an expert before. After this experience, I’d be surprised if he wants to put himself through the stress again. I know from my own experience that it isn’t always easy. You may have read all the guidance and understand your duties as an expert to the court, but you are very reliant on those instructing you to ensure you have sight of all the documents, have access to all the witness statements and are given any other assistance that you need. Report writing is also a skill that you get better at with practice (a bit like decision writing). Someone new to the process will need their hand held far more than an experienced “expert” expert.

That said, Coulson J described Mr Lester’s evidence as “entirely worthless” and gave twelve reasons (hence my twelve days of Christmas reference). These read as a list of “not to-do’s” and so must be considered a useful starting point for anyone new to being an expert. For those of us who have been around the block a few times, they provide a useful aide memoire.

It is unnecessary to list them all here (see paragraphs 81- 92 for the details), but a few examples include:

• Taking OSR’s pleaded claims at face value and not checking the underlying documents that supported or undermined them (reason 1).
• Only reading OSR’s witness statements before preparing his report (reason 2).
• Valuing claims on the “full basis of the OSR claim”, which meant the figures were skewed in favour of OSR (reason 3).
• Not considering (or formulating) claims based on the actual costs OSR incurred (reason 4).
• Appending documents to his original report that he’d not looked at or checked in detail (reason 8).
• Making assertions in his reports that appeared to come from him, but then admitted on cross-examination that they were from discussions with OSR witnesses (reason 9).
• Instead of checking the claim documents himself, he passed on the OSR claim and claims’ consultants claims (reason 11).
• Failing to value certain items on fair and reasonable rates (reason 12).

All of this led to Mr Lester admitting in the witness box that he could no longer support elements of the claim set out in his reports. As Coulson J noted, if an expert disowns his own reports, the “court cannot sensibly have any regard to them”. He went on to say that Mr Lester had “allowed himself to be used”, to be OSR’s “mouthpiece”, which meant he was not independent and his evaluations were “neither appropriate or reliable”. There is no mention of being a hired gun, but that is essentially what he was.

Not for the first time (nor probably the last), it is worth saying there but for the grace of God go I.