Author: Geoff Green

Happily for the expert…

On By Geoff GreenIn Concurrent evidence, Expert Witness1 Comment

In an earlier blog I wrote about the decision in Elanor Funds Management Ltd v Alceon Group Pty Ltd [2023] FCA 1291, a matter in which a claim by the purchaser of a shopping centre  – who said that it has suffered loss and damage due to its reliance on information provided by the vendor – was unsuccessful.

The Court found that the purchaser’s valuation expert was not truly independent, although notably it specifically declined to criticise him for accepting the engagement.  However, the Court was critical of “unnecessary negative comments” which he made about his counterpart in a response affidavit, and a question he asked of his counterpart in the concurrent evidence session, which was said to demonstrate that he was acting “as an advocate.”

In Elanor Funds Management Ltd v Alceon Group Pty Ltd [2024] FCAFC 121 the Full Court reversed the original decision, finding for damages in favour of the purchaser.

The Full Court described the conclusion of the defendant’s valuer – that the market value of the centre significantly exceeded the transacted price agreed by two well-advised, sophisticated parties – as “surprising,” and preferred the evidence of the purchaser’s valuer.

The Full Court found that there was no sound basis to conclude that the “negative comments” were unnecessary.  In relation to the question asked of the other expert in the “hot-tub” the Court held:

The question [the purchaser’s valuer] asked was relevant. It was open to conclude that the raising of the question tended towards advocating rather than giving impartial evidence. However, it should be recognised that the evidence was given in the cut and thrust of litigation, more specifically in giving concurrent evidence where one expert might seek to convey why he considers his opinion to be preferable to the opinion of the other. This was the first time [the purchaser’s valuer] had given evidence in Court. Ultimately, it is a careful examination of the facts, the reasoning underlying the opinions, and the rationality of the views expressed, which is the surer guide to the correct outcome than the manner in which one particular piece of evidence is given or the fact that a witness temporarily lost his cool or slipped into a transient moment of what could be seen as advocacy.

Happily for the valuer, the Full Court held that the adverse credibility finding implicitly made against him “ought not have been made.”

Another for the trainwreck collection

On By Geoff GreenIn Expert WitnessLeave a comment

Background

A husband and wife sought compensation for “debilitating and lifelong” respiratory system injuries due to exposure to toxic chemicals from the installation of spray polyurethane foam (SPF) insulation in their home.

They said that the Installer failed to ensure that they were absent from the house during installation, and failed to ensure that the house was properly ventilated post the installation.

The Installer accepted that the chemicals involved were highly toxic – his staff were required to wear a full protective suit with breathing apparatus – and also that the claimants suffered from Reactive Airways Dysfunction Syndrome (RADS) as diagnosed – but disputed negligence and causation.

The Installer’s defence relied heavily on the evidence of an expert toxicologist – which was rejected in its entirety, and the plaintiffs won substantial damages.

The Installer appealed, arguing that the trial Judge was wrong to exclude all of the Toxicologist’s evidence, given that it was uncontradicted by the plaintiffs.

“Hired Gun” experts

In Duffy v Brendan McGee & Anor [2022] IECA 254, the Irish Court of Appeal set out the importance of expert impartiality, and commented on the challenges posed by the use of so-called “hired gun” experts:

“Very frequently, the evidence of the expert will be decisive to the outcome, particularly where, as here, there are complex scientific or medical issues arising.  Some of the most high-profile miscarriage of justice cases have arisen from serious failures on the part of experts.  It is right therefore that the law expects and demands the highest standards of experts.  This has found expression in many judgments and more recently, rules of court.

“Unfortunately, the hired gun syndrome is one with which all lawyers are familiar and is perhaps an inevitable by-product of adversarial litigation…It may be an overstatement to say that one can always get some expert to subscribe to one’s point of view, but there is nothing to prevent litigants with deep pockets consulting any number of experts until one is found who will support the case being made.  As matters stand, there is no obligation to disclose such information to an opponent.

The Evidence of The Toxicologist

The Appeal Court identified several concerns with the Toxicologist’s evidence, including:

  • “…rather extraordinarily” he had purported to give an opinion on Irish law which was “entirely beyond his competence and entirely inappropriate for a supposedly independent expert.”
  • He did not rely on his own research or expertise, but rather on two papers which were not independent peer reviewed scientific papers.
  • His evidence was predicated on the Installer’s instructions on strongly disputed crucial issues, and he “made no attempt to consider, and evidently avoided considering, any alternative scenario.”
  • He repeatedly accused the plaintiffs of lying, “referring to their evidence as deception and misrepresentation” and “steadfastly refused to withdraw his allegations of deception” despite clear evidence to the contrary.
  • He purported to give a medical opinion on psychiatric and skin complaints, “an area clearly outside his competence and advanced for no obvious purpose other than attempting, again improperly, to undermine the plaintiffs’ case.”
  • He relied upon documents from the EPA to support his arguments but in cross-examination “sought to disavow the documents, saying the EPA was wrong.”
  • He gave evidence that was contradicted by his own statements in a podcast interview titled “SPF Lawsuit Avoidance” (which is still accessible via youtube).

The Court concluded:

“…any one of these matters on its own would tend to strongly suggest an absence of objectivity and impartiality on the part of [The Toxicologist], but taken in combination, can only be described as a wholesale abdication by [The Toxicologist] of his duty as an expert witness.  I share the trial judge’s experience of never having encountered such an approach to giving evidence by an expert witness before our courts.  [The Toxicologist] impermissibly donned the mantle of a partisan advocate in his efforts to discredit the claim of the plaintiffs.

It is simply not possible to adopt some kind of curate’s egg approach to this evidence, as counsel for [the Installer] suggested, and I am satisfied that the trial judge was perfectly correct to exclude [the Toxicologist’s] evidence in its entirety.  There was in this case such an abject failure to comply with the most basic obligation of an expert, namely, to be objective and impartial, as to render all of [the Toxicologist’s] evidence inadmissible.”

Comment

There is no obligation to disclose “expert-shopping” in Ireland, which is true for most jurisdictions.  The South Australian District Court has an anti-shop framework – a party seeking an expert report must provide a copy of the instructions to the other parties (Uniform Civil Rules 2020, rule 74.2), and parties must share copies of all expert reports, whether they intend to rely upon them, or not (rule 74.3) – but I’m not aware of anything similar in any other jurisdiction. 

Mr Bates and the Experts

On By Geoff GreenIn Concurrent evidence, Expert WitnessLeave a comment

A big story compressed into three hours of television means something gets squeezed out – so you can watch the excellent BBC series Mr Bates vs the Post Office (released in Australia in February 2024) without realising that expert evidence played a key role, or that the evidence of one expert was subject to very severe criticism.

Background

Each month UK Post Office sub-postmasters (effectively franchisees, the SPMs) were required to input details of stock and cash on hand into an accounting system called Horizon, owned and operated by an IT company, Fujitsu. 

Those actual figures were compared to the amounts that the Horizon system calculated as expected balances. If the actuals were less than the expected balances, Horizon identified the difference as a shortfall, which SPMs were contractually required to make up – presumably on the assumption that a shortfall reflected either a cash withdrawal from the till, or a sale that had not been correctly processed through the till.

Some of the SPMs were prosecuted for theft because they did not (or could not) pay the shortfall amounts that Horizon calculated.  Some of the SPMs were prosecuted for false accounting because they entered incorrect details into Horizon, to reduce the amount that they would be required to contribute.

Affected SPMs formed an action group, They argued that Horizon was not a robust and universally accurate system, and that it produced incorrect information which should not have been relied upon, especially for criminal prosecutions, and initiated a class action against the Post Office

Expert Evidence issues

Bates & Ors v the Post Office Ltd (No 6: Horizon Issues) [2019] EWHC 3408 (QB) was a separate hearing, dealing solely with the operation and functionality of the Horizon system itself, and so the role of  IT experts was critical to the outcome.

Each expert witness had substantial industry experience, and significant experience as an expert.  They prepared separate reports, supplementary reports, and then worked together to produce four joint reports.

“Shadow Experts”

The Post Office cost budget allowed £500,000 for experts who, notably, were instructed directly by the Post Office – not their solicitors or counsel – and who would not actually be giving evidence.

The Court said that direct instruction by a party was “a highly unusual situation,” and that estimated costs “were extraordinarily high, unreasonable and disproportionate,” which “did not, on the face of it, appear to be properly recoverable sums in the litigation.”

Direct Communication with the trial judge

The Post Office Expert prepared a second supplementary report, which he sent direct to the court, by email, after the trial had commenced.

The Court said that it was “extremely unusual, if not verging upon unheard of” for an expert witness to communicate directly with the trial judge rather than through the solicitors that engaged them. 

Although experts have a positive obligation to prepare a supplementary report if they change their opinions, in this case the Court held that the report was not due to a change in opinion, but rather an attempt “to bolster” existing conclusions.

Criticism of the Post Office Expert

The Court was not “universally critical” of the Post Office Expert.  It was careful to note that he had performed “a substantial amount of detailed analysis in his two reports” and played his part in significantly increasing “the overall knowledge that the court had.”  It recorded that he had also “discovered some bugs himself…[and] also took a sensible and considered view of some elements of the documentation,” and that his agreement in the Joint Reports had “saved a considerable amount of court time.”

Nonetheless, there was severe criticism of the Post Office Expert:

  • His methodology was “wholly flawed…and obviously so,” using reasoning that was “entirely circular.”
  • His analysis was “so riddled with plainly insupportable assumptions as to make it of no evidential value. It is the mathematical or arithmetic equivalent of stating that, given there are 3 million sets of branch accounts, and given there are so many sets of branch accounts of which no complaint is made, the Horizon system is mostly right, most of the time. It is a little more sophisticated than that, but not by very much.”
  • He “took a partisan view of the evidence of fact…an obvious preferring of the evidence of fact of the party instructing him, added, in this case, to a refusal or failure to accept further evidence of fact to the contrary which subsequently emerged.”
  • He relied “heavily” upon information from a Fujitsu executive whose involvement in the report “was simply hidden…[without] a note or summary of all the information that” the executive had provided.

Outcome

The Claimants were successful in that decision, the last of the reported judgements. 

In 2019 the Post Office agreed to pay compensation of £58m to the claimants. In 2021, the UK Government initiated a statutory inquiry by a retired high court judge, which is still underway.  In January 2024 the Government announced an intention to pass legislation to squash the SPM convictions, and passed legislation to set up a compensation scheme for the affected SPMs.

The “missing” banking expert

On By Geoff GreenIn Banking, Expert Witness, Non-bank lending, SME lendingLeave a comment

Background

A lender took action to recover a debt of $430,000 which in three years had grown to $3.61m, due to the impact of fees, and interest of $3.18m.

The borrowers disputed the amount of the debt. They said that a compounding monthly interest rate of 70.72% per annum was excessive, and amounted to a penalty.  They also claimed that the loan agreement was unenforceable due to misleading and deceptive conduct on the part of the Lender, and that it an unjust contract under the Contracts Review Act 1980 (NSW).

The loan agreement adopted an interest rate structure which is typical of non-bank lenders: a specified “Higher Rate” (in this case, 1.36% per week), which reduced to a “Lower Rate” (in this case 0.35% per week) if paid on time.

The “Missing” expert

The Court noted that there was no expert evidence provided by either party as to whether the Higher Rate was “excessive or even unusual in the context of a short term financing by way of a second mortgage.”

Outcome

In Commercial N Pty Limited v Huang & Ors [2024] NSWSC 23, the New South Wales Supreme Court held that:

  • Higher Rate – Lower Rate mechanisms had been subject to judicial review on many occasions, and the position was well-established: if drafting made it clear that a Lower Rate was a discount for timely payment then a such a mechanism could not of itself amount to a penalty.
  • The Higher Rate of 70.72% per annum was “very high” relative to the lower interest rate and “seemingly extravagant” – but there was no expert evidence on the point, and the rate was within the range of rates accepted by the Court in other matters.
  • Although the Higher Rate was not of itself unconscionable, monthly compounding at that Rate was “inherently oppressive and unconscionable” because it equated to an “utterly crushing” effective annual rate of interest of about 417% per annum.
  • The Lender took no steps to highlight the effect of the compounding rate to the Borrowers other than to refer to “a lengthy set of interest provisions” which included a formula “attended by a degree of ambiguity,” and was aware that they may need to sell their home to repay the loan.
  • In the circumstances, the Lender’s conduct was “irreconcilable with what is right and reasonable” and involved “a level of sharp practice and unfairness that [was] unconscionable”

The Borrowers were successful in obtaining orders removing the compounding regime from the loan contract, which reduced the interest charge by almost $2m.

Comment

This case pre-dates the 9 November 2023 amendments to the Unfair Contracts legislation (discussed here), which shifts the burden of proof to lenders.  There may well have been a different outcome under the now current regime.

How quickly is the finance required?

On By Geoff GreenIn Banking, Concurrent evidence, Expert WitnessLeave a comment

Background

A property developer arranged for a prospective lender (the Lender) to sign a confidentiality and exclusivity agreement before submitting a request for funding to acquire the Olympia Exhibition Centre in London.

The Lender declined the request, and some twelve months later became involved in arranging finance for another bidder who became the successful purchaser (the Purchaser).

The unsuccessful developer commenced legal action against the Lender, claiming damages said to arise due to breaches of the confidentiality agreement.

The Lender admitted that there had been “repeated and continuous breaches” of its obligations under the agreement – but denied that there was any damage caused by those breaches, for two reasons.  First, it claimed that the purchaser’s bid would have been successful if the funding had been provided by another lender.  Secondly, it claimed that the unsuccessful developer would have been unable to complete the project successfully.

The Banking Expert Evidence

The parties provided banking expert evidence including expert reports, memoranda from joint meetings, oral evidence under cross examination and concurrent oral evidence.  The Court noted that “each made a considerable contribution even if some of their reports cover areas of fact that did not need an expert.”

Outcome

In Bugsby Property LLC v LGIM Commercial Lending Ltd & Anor [2022] EWHC 2001 the Court held that:

  • The lender’s breaches were inadvertent, and there was no misuse of confidential information.
  • The Lender have provided a full credit approval, which saved the Purchaser’s bid at a crucial juncture – and had therefore reduced the unsuccessful bidder’s chances of success.
  • The unsuccessful bidder was no more or less reputable or reliable than the Purchaser, and it was “a near certainty” that the vendor would have sold to the unsuccessful bidder if required, and equally “a near certainty” that the unsuccessful bidder would have been able to secure finance and complete the development.
  • It was also “a near certainty” that the Purchaser would have been able to finance its bid without the Lender, given enough time – but the central question was whether any other lender would have been able to provide funding in the time required to meet the vendor’s timetable – and it was likely that they would have missed the deadline by at least two weeks.
  • The most likely outcome of the missed deadline was that the vendor would have extended the timetable rather than switch to the unsuccessful developer, but the possibility that it might have refused – assessed by the Court as a 40% probability – entitled the unsuccessful purchaser to damages for “loss of chance” which the Court quantified as £14,980,000.

Arm’s length lender loses their security due to a liquidator’s attack on related-party transactions

On By Geoff GreenIn Banking, Expert Witness, Non-bank lending, SME lending1 Comment

[edit on 10 April 2025  to note that this decision was overturned on appeal, a blog on the appeal decision is now on the to-do list!]

Background

A company (the Guarantor) had provided a mortgage to secure the borrowings of two associated companies, which were guaranteed by its directors.

Almost four years later the Guarantor was placed into liquidation, and the liquidator attacked the mortgage as an unreasonable director-related transaction, asking the lender to disgorge $12.15m in net proceeds, received after the land was sold and the first mortgagee repaid.

The Expert Evidence

The Lender arranged expert evidence to the effect that:

(1) It was common for lenders to take cross-securities from related entities when the security on offer from a borrower was inadequate.

(2) It was reasonable for the Guarantor to provide a mortgage in the circumstances; and

(3) The Lender acted in accordance with reasonably accepted lending practices in the circumstances.

That opinion was provided by an insolvency practitioner, rather than a banking expert, but it appears that there was no challenge to her expertise.

Conclusion

In Cooper as Liquidator of Runtong Investment and Development Pty Ltd (In Liquidation) v CEG Direct Securities Pty Ltd [2024] FCA 6, the Federal Court held that:

  • The evidence was “incomplete and lacking a number of important respects.” None of the directors of the three companies gave evidence, and the purpose of at least some of the funding was never explained.
  • The Expert’s conclusion that the three companies were a part of a group was “no more than speculation on her part” given the “paucity of the evidence,” and so her conclusions based on that assumption could not be accepted.
  • It was true that some part of the advances were later used to develop the mortgaged land but that did not demonstrate any benefit to the Guarantor at the time the mortgage was entered into. Once that was recognised, there was no benefit to the Guarantor in providing the mortgage whereas the detriment to the Guarantor was “obvious and substantial.”
  • The liquidator was successful in having the mortgage declared an unreasonable director-related transaction – but was not entitled to the whole of the proceeds, because the Lender was entitled to credit for the circa $10m used to develop the mortgaged land, and which increased its value.

Comment

If the circumstances of the transaction had been properly understood and documented by the Lender it may well have been able to show that there was a genuine corporate benefit to the Guarantor in entering into the mortgage – but that opportunity being missed it was not something that could be later remedied in the absence of directors who had no reason to return to Australia.

Difficult questions in the hot tub!

On By Geoff GreenIn Concurrent evidence, Expert Witness1 Comment

[edit on 5 October 2024 to note that this decision was overturned on appeal, see my blog here]

Background

The Purchaser of a neighbourhood shopping centre alleged that the vendor’s conduct was misleading and deceptive due to a claimed failure to disclose the true position of rental arrears, incentives and delayed lease commencements.  It claimed damages of $6m, which it calculated as the difference between the purchase price it paid on settlement, and the claimed “true” value as determined by an expert valuer engaged by the Purchaser (the Valuer).

In Elanor Funds Management Ltd v Alceon Group Pty Ltd [2023] FCA 1291, the Purchaser was comprehensively unsuccessful.  First, the Court did not accept that the Purchaser had established that the information was misleading and deceptive.  Secondly, it did not accept that the Purchaser had relied on the information.  Thirdly, it did not accept that the Purchaser had suffered a loss, because it preferred the valuation evidence of the Vendor’s expert valuer.

In dealing with the valuation evidence there were questions about the independence and impartiality of the Valuer, and the specific and detailed assessment of that issue are my focus here.

Multiple valuations and multiple values

The Valuer had provided three different valuations of the shopping centre as at the settlement date, on three separate occasions.

Firstly, he was engaged by the Purchaser in 2017 to prepare a valuation for mortgage purposes, which assessed the value as $55.25m.  He was also engaged by the Purchaser in 2021, to prepare a “retrospective indicative valuation” under specific assumptions, which assessed the value as $51m. Lastly, he was engaged a third time as an independent expert witness by the Purchaser’s solicitor in 2022, to prepare a valuation to support the damages claim, which assessed the value as $49m.

A well-qualified valuer who acted honestly

The Court found that the Valuer was a well-qualified, experienced, and professional valuer who had honestly approached his work, and in his evidence had answered questions in a straightforward manner without evasiveness, and had repeatedly made appropriate admissions.

…but not impartially

Notwithstanding that it accepted his expertise and honesty, there were concerns about the actions of the Valuer, who, the Court held:

  • Was prepared to adjust his valuation calculations at the request of the Purchaser, which reflected “against his ultimate independence as an expert witness.”
  • Understood “that the purpose of his engagement was to assist [the Purchaser] in litigation by deriving a lower figure than the purchase price for the centre.”
  • “Did not act as one would expect an independent expert witness to act in the preparation of a valuation opinion…[and was] an active participant in assisting [the Purchaser].”
  • Had made unnecessary negative comments about the relevant experience of the Vendor’s expert in a response affidavit, which were not a matter for reply evidence and were “a further basis for questioning his independence.”
  • Asked a question in the concurrent evidence session about the Vendor’s expert’s registration, which, the Court held, demonstrated his role as an advocate for the Purchaser.

Notably, despite those concerns, the Court specifically declined to personally criticise the Valuer for accepting the expert witness engagement, for two reasons.  It noted that it was his first engagement as an expert witness, and further, noted that the Purchaser’s solicitor was aware that he was not independent, as evidenced in a letter of engagement, which noted “Given that you have already provided advice to [the Purchaser] in respect of its acquisition of the Centre, it cannot be said that you are truly an independent, arms-length expert.”

Comment

“Hot tubbing” is the informal name used to describe expert witnesses giving evidence at the same time, “concurrent evidence” is the formal term.  It allows counsel to ask the experts to comment on each other’s answers in real time, and judges to develop a conversation between two experts to discuss, for example, how and why they hold different positions.  Sometimes experts will be given the opportunity to ask each other questions.  This is the first judgement I have seen reflecting attention being paid to an expert’s question rather that his or her answer.

The High Court on Expert Evidence

On By Geoff GreenIn Expert WitnessLeave a comment

This week the High Court handed down judgment in a matter dealing with expert evidence this week: 𝘓𝘢𝘯𝘨 𝘷 𝘛𝘩𝘦 𝘘𝘶𝘦𝘦𝘯 [2023] HCA 29.

The Court endorsed the 𝘔𝘢𝘬𝘪𝘵𝘢 𝘷 𝘚𝘱𝘳𝘰𝘸𝘭𝘦𝘴 requirement that an expert opinion must be demonstrated to be the product of the application of the specialised knowledge of the expert – but said that that the requirement was “not absolute” [at 12].

The High Court identified “a distinction touched on but not elaborated upon” in 𝘔𝘢𝘬𝘪𝘵𝘢, between “a question as to whether a process of reasoning engaged in by an expert is sufficient to demonstrate that his or her opinion is the product of the application of specialised knowledge and the question of the extent to which a process of reasoning engaged in by an expert through the application of specialised knowledge is clear and convincing.” [15].

In the present case the question was “whether the process of reasoning disclosed by [the forensic scientist’s] testimony was sufficient to demonstrate that his opinion…was the product of his application of the specialised knowledge.”[19]

There was “difficulty appreciating [his] evidence…merely from the transcript” because it appeared “that English may not be his first language” [20] but it was “clear enough from his cross-examination in the pre-trial hearing that what he was saying was that he had engaged in a process of inductive reasoning which involved applying his knowledge…to observed features…to form a conclusion.”[21]

The appeal was dismissed.

“As far removed from serious, credible expert evidence as I find it possible to imagine”

On By Geoff GreenIn Banking, Expert WitnessLeave a comment

An apparently successful property developer turned out to be a “conman and a forger.”  After the collapse of his £600m property empire, he and an accomplice were prosecuted for fraud, convicted, and sentenced to lengthy prison sentences.

Some years later, in his capacity as the beneficiary of a purported trust, the conman’s son took legal action against his father and the lender to the property empire (which lost at least £150m).

The court held that all the claims had failed, on multiple grounds: it did not accept the existence of the claimed trust;  it held that the litigation was an abuse of process because the real litigant was the conman father, who had manipulated his son (and about whom it said “the extent of his dishonesty is astonishing, and some of the individual charades in which he engaged are almost comical”); and, finally, that the actions of the lender did not in fact cause any loss.

Before arriving at those conclusions, the role and evidence of a banking expert was the subject of severe criticism, which is the focus here.

Which expert, by whom engaged?

The son was given permission for expert evidence “in the field of real estate valuation” – limited to the issue of the best price reasonably obtainable for the portfolio properties, at the time of their sale by the lender.

The father sought permission to submit an expert report “relating to [the bank’s] banking misconduct.” When that application was refused, the banking expert proposed for the father’s report on banking misconduct was engaged by the son to prepare the real estate valuation report for which permission had been given.

Should the expert have accepted the engagement?

On the question of whether the banking expert should have accepted the engagement, it was said:

[205] [the banking expert] should not have been asked to give expert evidence…He was not competent to do so. Having been asked, he should have declined to assist, recognising that he was not an expert in the field of expertise from which expert evidence had been permitted. In a rare moment of concession, [the banking expert] said in answer to my direct question that had he been told that [the son] had been given permission to provide expert evidence in the field of real estate valuation…‘I would say go for a – go for a working chartered surveyor.’

The expert’s evidence

On the evidence actually given by the banking expert, it was said:

[206] Having thus failed in his most basic duty to the court to ascertain whether he was competent to provide the kind of expert evidence for which the court had granted permission, in my judgment [the banking expert] presented an ill-reasoned and for the most part obviously unsustainable or irrelevant argument about the case that had very little to do with the issue…His opinions did not withstand serious scrutiny, he declined to make obviously appropriate, reasonable concessions, and I regret to say that on a number of occasions, I was left in no real doubt that [the banking expert] was making his evidence up as he went along, which involved him not telling the truth to the court about how he had derived some of the opinions he had expressed in writing.

[215] In re-examination, in response to an obviously loaded series of questions…[the banking expert] invented [a]  thesis…[216] …about as far removed from serious, credible expert evidence as I find it possible to imagine.

The (lengthy) judgement is available here: Kallakis v Kallakis & Ors [2023] EWHC 2148.

Reference to the Code of Conduct is key

On By Geoff GreenIn Expert WitnessLeave a comment

Background

A medical expert was the subject of a claim for damages said to arise because – it was alleged – the report he prepared was “false, misleading, incorrect, vague and not fit for purpose” and “so poor and…so wrong” that it resulted in the abandonment of a claim in the Australian Human Rights Commission (AHRC).

A claim for witness immunity

The expert asked the Court to dismiss the proceedings, without a full hearing.  He said that the claim could not possibly succeed, because as an expert witness who was instructed to prepare a report for use in litigation, he had the benefit of an absolute immunity against such claims.

The plaintiff argued that witness immunity only applied to reports prepared for use in litigation.  The plaintiff pointed to the fact that the AHRC was not a Court, and further, said that the report was prepared to assist an assessment of a potential claim against the plaintiff’s former employer.

Consideration

In Hastwell v Parmegiani [2023] NSWSC 1016 the Court held that:

  • Nothing turned on the fact that the AHRC was not a court, because referral to the AHRC was only the first step in the process of recovering compensation.
  • It was the purpose of the report that was important, not the actual use – otherwise immunity would depend on whether the expert opinion was favourable or unfavourable to the client.
  • The expert had been asked to confirm his compliance with the Expert Witness Code of Conduct, and did so, and instructed that he may be required to give evidence in court. In the circumstances, he was clearly “retained to prepare a report as an expert witness in future court proceedings.”
  • Expert witness immunity was not dependent upon whether an expert actually gave evidence, or even whether there was any litigation at all.

Outcome

The Court held that notwithstanding the abolition of witness immunity in the UK (see Jones v Kaney), the law in Australia remained clear: an expert who was required to comply with the Expert Witness Code of Conduct on the basis that evidence might be used in court, continued to have immunity.  Accordingly, the case was “bound to fail,” and was dismissed.