Email chains, gross misconduct and the experts who count the cost

 

The title sets the scene for this case update of Inspired Education Online Limited -v- Tom Crombie [2025] EWHC 1236 (Ch). 

Mrs Justice Joanna Smith provides an incredibly useful judgment following the hearing at the High Court in March of this year.  The learning points have been extracted from her judgment and are set out in the next section in the hope that they may assist you in future cases covering similar issues.

Previous case law and legal tests for gross misconduct were addressed and applied given that such allegations underpinned the case.  The parties adduced expert evidence to establish the value of shares on the assumption that warranties had been breached.

This update focuses on both experts’ evidence given that the approaches were significantly different and that one was clearly preferred over the other.      

Learning points

Learning points for experts   

• When instructed in similar cases to this one, i.e. as an accountancy expert, you play a vital part in assisting the court to quantify damages.

• Be prepared for a Barrister’s skilful and forensic cross-examination of your methodology and calculations.

• Ensure your arithmetic calculations are accurate.

• Approach your role with the rigour of a truly independent expert. 

• Stay focused on matters within your expertise.

• It is inappropriate to adduce points in your evidence but only provide a partial approach in support.

• The Judge preferred the expert in this case whose methodology came across as “thorough, articulate and measured”.

• When referencing third party sources which don’t fit entirely but are the closest available be clear about this fact and explain the situation. 

Learning points for instructing parties 

• In relation to litigation generally, a reminder to ensure clients do not destroy evidence due to the inferences that can be drawn from this.  For example, emails and WhatsApp messages.

• Be familiar with Practice Direction 57AC – ‘Trial Witness Statements In The Business And Property Courts’ to ensure statements don’t stray beyond the bounds of these provisions.

• Take the opportunity to review authorities cited by the expert. Ensure your expert can provide the necessary detail on these if they should become an issue during cross-examination.

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