Court berates “most unsatisfactory” expert evidence

Commercial Court: Ruling shows danger of standing by

Claimants and their lawyers could not just blame their expert for the “most unsatisfactory” state of his evidence, the Commercial Court has said in refusing to allow them to bring an important part of a huge commercial claim.

Mr Justice Males said parties and their lawyers had to step in when they were aware of a problem.

Responding to the claimant’s complaint that the default was not that of the claimants but of their expert – “who is not the claimants’ property or their client” – the judge said: “While that may be true, there is in fact no evidence to explain whether what happened was the professor’s own idea or was a course which he was encouraged to adopt by the claimants or their legal representatives.

“Even assuming the former, however, which is from the claimants’ perspective the most favourable interpretation, this was as I have indicated the second occasion on which this has happened.

“The claimants or those advising them were therefore aware of what Professor Kilgallon had done the first time around and should have made it clear to him that this was unacceptable. If they failed to do so, this was itself a serious failing.”

In a blog on this aspect of the ruling, well-known barrister Gordon Exall wrote: “This clearly shows the dangers of the lawyers standing by whilst an expert fails to comply with court orders.

“It would be prudent to emphasise the importance of this to the expert and at the outset of the case. Telling an expert that they must comply with orders and rules of court can hardly count as interference with the independence of an expert.”

Delivering judgment in Mayr and others v CMS Cameron McKenna Nabarro Olswang [2018] EWHC 3669 (Comm) – a breach of duty claim against the City law firm worth “several hundred million euro” – Males J explained that conventional directions had been given regarding both aspects of expert evidence in the case, the ‘LMM issue’ and the ‘Turkish issue’.

This provided for a sequence of steps – an exchange of initial reports, followed by a joint meeting of experts, recorded in a joint memorandum.

Once this was produced, there was scope for supplemental reports.

“The object of those reports is not simply to repeat what has been said the first time around but to engage with the points, hopefully although not always, the narrowed points on which the experts remain in disagreement after their joint meeting.

“Sometimes the order will spell this out but, even when it does not, this is implicit.”

Males J said that, in the case of the LLM evidence, the memorandum recorded that the joint meeting produced “no further agreement on any of the points addressed in the experts’ reports”.

It said the situation might change once the claimant’s expert, Professor William Kilgallon, produced his supplemental report.

The judge said that although there was later an exchange of supplemental experts’ reports, the memorandum was not updated. it was unsatisfactory because “the essential step in the proceeding of a constructive discussion between the experts has simply not happened”.

Males J said the same thing happened with regard to the Turkish evidence, and instead there was the same “stunt”, as counsel for the law firm described it “with some justification”.

The judge said he did not regard the memorandum or the meeting which it recorded as “coming close to compliance” with the order that the experts should meet and produce a joint memorandum.

“When an expert fails lamentably to comply with that order, the whole procedure for further expert evidence in the case is thrown into disarray”.

He continued that a party was “not entitled to disregard the rules, secure in the knowledge that until an unless order is made it will always get a second chance”.

He said: “It seems to me that the position is that the claimants have failed to comply with the terms on which they were given permission to adduce evidence of the Turkish pharmaceutical industry in this case.

“The burden is on them to provide a workable solution, which they have not done. It is for them too to apply for relief from sanctions. Again, they have not done so.”

He went on: “The order which I make therefore is that as matters stand the claimants do not have permission to adduce evidence of the Turkish pharmaceutical industry at the trial.

“The burden will be on them to come forward, as I have said, with a proper and acceptable procedure which will include a proper joint meeting and will meet the criteria of relief from sanctions if they wish to pursue this evidence.

“If they have simply left it too late to do so in an acceptable way, then that is something for which they must take the consequences.”

The claimants argued that the effect of the ruling was to strike out a significant part of the claim without an unless order.

Males J said his ruling was not “a final striking out of the claim”. He added: “It put the ball firmly in the claimants’ court to come back to court with proposals which will put the situation right and will do so without causing serious prejudice to the trial.

“Although not expressed as an unless order, that is broadly similar in its effect.”

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