Summary
The case was a group litigation concerning extensive oil pollution which affected two regions in the Niger Delta in Nigeria. The judge rejected the strident criticism of the experts who were called to provide evidence on aspects of Nigerian law.
Learning points
Leaning points for experts
Learning points for instructing parties
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If you consider that an opposing expert is not capable of properly assisting the court, you should raise this as early as possible before the trial, such as at a case management hearing.
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It is wisest to have strong grounds before making a fully blown attack on the credibility and qualifications of an expert witness and suggesting that their evidence should be rejected in its entirety.
The case
The case was a group litigation concerning extensive oil pollution which affected two regions in the Niger Delta in Nigeria. The issues for trial required the court to consider aspects of Nigerian law.
The expert witnesses
The claimants instructed Dr B to deal with the private law issues, and Dr A to deal with fundamental rights issues. The defendants instructed Mr O to provide expert evidence on all of these issues. The claimants and the defendants both made significant criticisms of the opposing experts.
The claimants’ criticisms of Mr O
The claimant made serious allegations about the honesty and propriety of Mr O’s conduct as an expert witness. They asserted that he had wilfully concealed a relevant case, in which he had acted for Shell, that he was obviously partisan because his firm acts for many oil company clients in Nigeria, and that he had wrongly held himself out as an expert in constitutional law when he had an insufficient body of relevant experience in constitutional law cases.
The Judge found these criticisms to be unfounded and unhelpful, and she dismissed the suggestion made by the claimants that she should reject Mr O’s evidence in its entirety. She noted that, if the claimants really thought that Mr O could not properly assist the court, it would have been more useful, and more consistent with the overriding objective, for them to raise that issue at a case management hearing. The judge noted that by the time the objections were raised, the court had read and considered several long reports prepared by Mr O and heard his evidence over two weeks on a range of preliminary issues.
The judge considered that Mr O’s omission to mention the case in his reports was regrettable but an oversight. She rejected the suggestion that it was deliberate or that he had wrongly concealed his involvement. Further, she considered that Mr O’s CV adequately demonstrated that he was qualified to give evidence on the public law issues.
The defendants’ criticisms of Dr A
The defendants sought to minimise the weight of Dr A’s opinions on fundamental rights issues on the grounds that he was a self-confessed “activist” in the field of human rights who was telling the court how Nigerian law should be, rather than assisting the court understand how it is. The judge, however, was not persuaded by these arguments, noting that “[e]xperts are human beings after all, and will have developed interests and opinions, particularly in areas of law in which they practise frequently. That does not prevent them from seeking to assist the court in accordance with the requirements set out in CPR Part 35, as I find that each of the experts sought to do here.”
The judge’s conclusion on the criticisms of the expert evidence
The judge therefore declined to dismiss any of expert’s evidence, wholly or partially. Instead, she preferred to consider the competing positions they expressed on issues where they differed by reference to the merits of the points which they made, the cogency of the competing opinions they advanced and to the relevant Nigerian law they drew to her attention. She noted that there were a great many points of private and public law on which the experts agreed, and both sides’ experts had moved nearer to the view of the other experts on some points, after discussion or cross-examination.
The judge went on to thank the three experts in the final paragraph of the judgment for enabling her, from a standing start, to become sufficiently well acquainted with Nigerian law and Nigerian courts. She expressed her utmost respect for their seniority and their advanced experience of the laws of their country.