How not to comply with CPR 35
A recent High Court case gives an object lesson in how not to do the job right
Mr Justice Coulson in the case of Van Oord Ltd & Another -v- Allseas UK Ltd  EWHC 3074 (TCC) pulled few punches in his criticism of the claimants’ quantum expert. As an object lesson in how not to comply with CPR Part 35, it is worth reviewing the 12 points of criticism. The expert:
- took the pleaded claims at face value and did not check the underlying documents that supported or undermined them
- prepared his report by only looking at the witness statements prepared on behalf of the claimants and did not consider the witness statements prepared on behalf of the defence
- valued the claims only on the basis of the claimants’ assertions, despite the judge’s exhortations to the experts to agree figures based on both their own and the other side’s case
- never once considered, let alone formulated, claims based upon the actual costs incurred by the claimants
- throughout his cross-examination, was repeatedly ‘caught out’, culminating in the judge concluding that the admitted errors fatally undermined both his credibility and that of the claimants’ claim as a whole
- went so far as to say in cross-examination that he was not happy with his own reports, a fact that led the judge to say that if an expert disowns his own reports in this way, the court cannot sensibly have any regard to them
- repeatedly accepted that parts of his reports were confusing and, on more than one occasion, agreed that they were positively misleading
- appended documents to his original report which he had either not reviewed or had certainly not checked in any detail
- during cross-examination, confirmed that the views expressed in his report were assertions made by the claimants’ factual witnesses, assertions that had already been proved incorrect during their cross-examinations! The judge considered the expert’s attempt to plug the gaps in earlier evidence to be ‘subterfuge’ and ‘the complete opposite of what a responsible, independent expert is obliged to do’.
- passed off a schedule as being prepared by himself when it was in fact prepared by two of the claimants’ factual witnesses, and the schedule was found to include important errors which meant it had to be discounted entirely
- accepted that instead of checking the claims himself, he had preferred to recite what others had told him, even though what he had been told could be shown to be obviously wrong, and
- when valuing each line in the quantum claim, had not sought to use fair and reasonable rates, nor investigate whether the figures he was promoting were actually fair and reasonable or represented a windfall for the claimants. The judge found that the expert’s approach rendered the whole of the valuation exercise worthless.
Clearly, the expert in this case allowed himself to become the claimants’ mouthpiece, resulting in his evidence being discounted in its entirety. No doubt serious cost consequences could follow!