High standards of expert witness evidence support London’s pre-eminence

Expert witness evidence aids London’s pre-eminence

If there was any doubt, the first London International Disputes Week 2019 (#LIDW2019) certainly demonstrated why London is the premier centre for major dispute resolution. The conference showcasing the impressive range of legal and support services (such as expert witness evidence) available here. 

My own professional interest as a frequent expert witness on damages was particularly drawn to Mr Justice Roth’s keynote address in the final session of the week on Competition Disputes.  Competition cases require extensive use of expert evidence and Mr Justice Roth’s address set out the tools and sanctions on experts in recent cases such as the three interchange disputes, BCMR, PayTV v Sky Sports and Britned disputes. 

Mr Justice Roth speaking to a room of international lawyers and expert witnesses with an interest in competition disputes
Mr Justice Roth’s Keynote address

Mr Justice Roth, a Justice in the Chancery Division of the High Court of England and Wales and President of the UK Competition Appeal Tribunal described the framework that has evolved in England for securing impartial expert witness evidence, starting from the principles which Mr Justice Cresswell had laid down in his judgment in The Ikarian Reefer ([1993] 2 Lloyd’s Rep. 68 shipping case. 

He mentioned the increasingly common practice of instructing experts to meet before they prepare their first reports to agree the scope and thus avoid addressing irrelevant issues.  He went on to describe how useful the tribunal recently found asking experts to present a “teach-in” at an early stage of the hearing in Britned Development Ltd v ABB [2018] EWHC 2616 (Ch).  This practice will become even more important as Judges conduct more concurrent expert evidence (better known as “hot-tubbing”) sessions, a process he recognised created much more work for Judges but did shortened the overall hearing. 

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Does kissing an expert witness suggest a relationship?

An expert witness must be impartial

Readers will not need reminding that an expert witness has a duty to help the court on matters within their expertise and this duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid (CPR 35.3 and CrPR 33.2).  As one would expect, the expert is required to approach their work with total independence (PD35 2.1). 

The kiss

Kissing the expert witness

Has the expert witness compromised his independence?

This requirement was brought into question at the trial of a Mr Mick Wills at Wellingborough Magistrates Court last year. Having been accused of illegally hunting a fox with dogs, the expert evidence for the prosecution was provided by Professor Stephen Harris, a self-described vulpophile and one of Britain’s leading authorities on foxes and a longstanding opponent of fox hunting.  It was reported to the Judge that a prosecution witness had kissed the expert witness when they met just before court.  When challenged, Professor Harris’s explanation for this behaviour was that he merely knew the lady and had not seen her in 20 years!

Judge Daber’s reaction on being told

On being informed of this incident, Judge Daber took a rather stern view of this incident, concluding that: “If a relationship exists between a proposed expert and the party calling that expert which a reasonable observer might think is evidence of bias, then he must be excluded on the grounds of public policy. Justice must be seen to be done.”

 

The judge’s response to this rather unusual event should remind experts and those appointing them to take great care to avoid even the appearance of being too close. 

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Cryptocurrencies and fraud continue to be inextricably linked.

The Commodity Futures Trading Commission (#CFTC) filed a federal civil enforcement action in the U.S. District Court for the Eastern District of New York against Patrick K. McDonnell and CabbageTech, Corp., doing business as Coin Drop Markets (CDM) charging them with fraud and misappropriation in connection with purchases and trading of Bitcoin and Litecoin.

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The risk of fraud involving cryptocurrencies

Bitcoin prices fluctuate

Bitcoins have been a source of fraud

Bitcoin fraud

Action Fraud recently reported that “once the price of Bitcoin started to surge in mid to late 2017 we started to see a massive increase in the number of frauds. These new investment scams are exploiting a lack of general understanding about Bitcoin and, it being the flavour of the month, to make money before moving on to the next investment craze”.

A few weeks ago we advised a digital currency trader who had a dispute with his broker following an especially volatile day. The broker decided to close his position with no warning in order to minimise their own risk, causing the client to incur losses. Having reviewed the regulatory and contractual position we were able to advise the client that he had a claim against his broker and advised him to pursue his losses. Read More