IS THIS AN EXPERT REPORT I SEE BEFORE ME? I THINK NOT

In Al Nehayan -v- Kent [2016] EWHC 623 (QB) Mrs Justice Nicola Davies made observations upon “expert” evidence that had been placed before the court.  There were major failures of form as well as of substance.  The judgment contains an important reminder that expert reports must comply with the requirements of PD 35.

“Within no report is a statement that the expert a) understands his duty to the court and has complied with that duty and b) is aware of the requirements of Part 35 CPR. The terms of the Practice Direction 35 are mandatory. The reports, if the same can be properly so described, fail to comply with the requirements of Practice Direction 35 … If the court were to admit these reports the weight to be attached to them would be minimal however given the mandatory requirements of the Practice Direction and the failure by those who act on behalf of the claimant to comply with them, these reports are not be admitted in evidence.”

THE CASE

The defendant was applying for security for costs in a case where the claimant was a UAE national, resident in Abu Dhabi and a member of the ruling family.  In support of the application the claimant adduced  expert evidence from a practising lawyer that enforcement of a judgment would be difficult in the UAE.

THE CLAIMANT’S REPORT

1. “In response to the defendant’s expert report the claimant has submitted three reports, the author being Dr Salloum who would appear to work for Salloum and Partners LLC described as legal consultants. In no report is there any identification of Dr Salloum’s qualifications or experience. It is not until the second report that a Statement of Truth is included. Within no report is a statement that the expert a) understands his duty to the court and has complied with that duty and b) is aware of the requirements of Part 35 CPR. The terms of the Practice Direction 35 are mandatory. The reports, if the same can be properly so described, fail to comply with the requirements of Practice Direction 35. The third report, which was received by the court on the morning of the hearing, relies upon self serving newspaper articles published in the UAE to support its contention that the UAE is “consistently ranked amongst the top countries for Rule of Law”. The claimant is represented by counsel and solicitors who will be well aware of the requirements of CPR 35 and its Practice Direction. They have known for some time that the reports do not comply with the Practice Direction and have had ample opportunity to remedy the defects in the reports. If the court were to admit these reports the weight to be attached to them would be minimal however given the mandatory requirements of the Practice Direction and the failure by those who act on behalf of the claimant to comply with them, these reports are not be admitted in evidence.

2. As to the report from the United Nations the point is made that no Terms of Reference are available, it is also out of date. The document deals primarily with public and criminal law, it does not specifically deal with enforcement in the civil/commercial courts. It does not distinguish between Abu Dhabi and other Emirate states. The focus of the report is upon crime and state security. The court has no means of checking the factual assertions contained in the Report. There is nothing in the report which would assist this court in its assessment of the progress of an enforcement of a costs order in the civil justice system in the UAE.”

RELATED POSTS ON EXPERTS

Permission to call experts

• Case Management, necessity and experts: is expert evidence “reasonably required”?
• Is an expert really necessary? Two recent cases.
• Permission not granted to call employment experts: the relevant principles considered.

Experts generally

• The role of the expert witness in litigation: Supreme Court Guidance
• Expert reports: too long and not much use.
• More on experts: non-compliance with the rules taints the evidence badly
• The credibility of witnesses: joint meetings and overreaching experts: a case to point.
• Over eager experts just do not help: they hinder and harm the case of those who call them.
• Beware the expert evidence who “lectures” the court (and tells the judge who to believe).
• Expert evidence about the veracity of witnesses: well, its probably a waste of time.
• An expert must disclose details of professional relationship with a party otherwise the consequences can be dire.
• Irrelevant evidence, inferences and “forgery”: evidential issues in a High Court case.
• Principles of mitigation of loss & the credibility of expert witnesses.
• I didn’t mean it when I signed the joint report: what happens when experts change their minds?
• Expert evidence: the expert’s role: seeing the wood for the trees.
• Cross-examining expert witnesses: hints, tips and links.
• Experts going on a frolic: a family law case where the expert witness was “thoroughly unhelpful”.