The judgement from The Honourable Mr Justice Trower in JSC Commercial Bank Privatbank v Igor Valeryevich Kolomoisky & Ors presents a number of interesting learning points for Expert Witnesses. But we have been particularly struck by the assertion that Expert Witnesses have a duty to disclose previous criticisms of their evidence in judgments.

 

What the judge said

“In two previous cases, Pindell Limited v. Airasia Berhad [2010] EWHC 2516 (Comm) and ACG Acquisition XX LLC v. Olympic Airlines [2012] EWHC 1070 (Comm), Mr S's evidence had not been accepted by judges of the Commercial Court.  In the second of those cases, ACG (at para 50), Teare J had held that Mr S had not given sufficient consideration to his duty to the court not to omit matters which might detract from his stated opinion, having regard to some of the findings made by Tomlinson J in Pindell.  The consequence of this in ACG was that Teare J was unable to rely on his evidence, save when accepted by the other expert.

These criticisms took on a further level of significance in light of the judgment in Peregrine Aviation v. Laudamotion [2023] EWHC 48 (Comm) at [22], in which it was noted by Henshaw J that "Mr S ought to have disclosed criticisms of his evidence in two previous judgments as part of or in conjunction with his expert report in that case".  Henshaw J's judgment was handed down on 17 January 2023 but, despite this timely reminder of his duties, it was only six months later, a mere three days before his cross-examination in these proceedings, that Mr Kolomoisky's solicitors disclosed to the Bank's solicitors what had been said.  In cross-examination, Mr S said that he thought he had forwarded what had been said in Peregrine to the lawyers at an earlier stage.  I have no means of knowing whether he did in fact do so, but I consider that he should have ensured that this information was made available to the Bank and the court much earlier than he did.  In that respect he was in breach of his own personal duty to the court.  This failing made an evaluation of the credibility of his evidence a more difficult task than would otherwise have been the case.”

 

Fair assertion?

Most experts will tell you that they are frequently unaware of the outcome of cases, let alone being sent copies of judgments that they have been mentioned in. This problem pervades the justice system and even extends to the Family Courts where there is a specific requirement for the Instructing Party to “send to the expert a copy of the court’s final order, any transcript or written record of the court’s decision, and its reasons for reaching its decision, within 10 business days from the date when the party received the order and any such transcript or record.” (Family Procedure Rules Part 25.19)

The Criminal Courts are at least a little kinder.  The Criminal Procedure Rules r 19.2(3) refer to the expert’s duty to "disclose to the party for whom the expert’s evidence is commissioned anything of which the expert is aware."

But it seems somewhat unfair to say that Expert Witnesses have a duty to share this criticism since this is infrequently shared with them.

 

If you are aware of criticism

Of course, if you are aware of any criticism you would be wise to make your Instructing Party aware of it. The last thing you want is for your credibility to be attacked by opposing counsel who have researched previous cases in which you have been mentioned.

 

The view from the EWI Board

If an expert is called to give evidence in court, they should take reasonable steps to obtain judgments in cases where they gave evidence and reflect on any judicial comments—positive or critical—for the purpose of professional development.

In the first instance, experts should contact their instructing party to ask to be sent copies of judgments, though we acknowledge that these are not always easy to obtain.

There are databases available which experts can search and paid services which can be used to set up alerts, but this is unlikely to be a financially viable option for most and would require significant expenditure that we are not convinced the courts, or a hostile cross examiner can fairly demand.

The Board is concerned about any obligation being place on every expert to check every case they gave evidence in to find out whether the judge preferred the other experts evidence while accepting the expert had discharged their duty but reached an alternative opinion or found fault with the evidence that had been given.

Experts can only disclose what they are aware of. Not all decisions find their way into the public domain in any event. Not all decisions result in transcripts being prepared. There are lots of unreported decisions. 

The best an expert can do is to routinely ask instructing parties to share any written judgements with them after they give evidence and then be ready to disclose criticism in their reports. 

Provided they can say they do that when giving evidence, we believe they have equipped themselves as much as they can. 

If there is to be an expectation that experts disclose judicial comments, then it should be matched by an obligation on legal professionals or the court to ensure that judgments are provided in a way that guarantees access for the experts involved. Without that, any duty risks being uneven and impractical.

The foundation for this has to be routine provision of judgments to experts. Otherwise, the judiciary risk setting an unrealistic burden which some experts can meet only by investing in monitoring systems, while others may never have access. 

We believe that the civil procedure rules committee should consider this issue further.

 

The good news?

Just because you were criticised before, it doesn’t mean that you cannot redeem yourself. In considering another expert’s evidence, the judge wrote:

“In a judgment I gave in unrelated litigation (Bank St Petersburg OJSC v. Arkhangelsky [2022] EWHC 2499 (Ch) at [472]), I had criticised the quality of Mr Thomas' evidence as betraying a marked failure to recognise that his role was to assist the court by an independent and dispassionate statement of his views without descending into the arena to argue the counterclaimants' case on their behalf.   Not surprisingly, he was taxed with this in cross-examination and accepted that the criticisms I had made of his evidence in that case were fair.  However, his evidence in these proceedings was in marked contrast to his evidence in the Bank St Petersburg case.  While he was firm in the views that he expressed, he did not cross the line into advocacy and explained the concepts on which he relied with clarity.  He was confident in his opinions, and justifiably so.  My overall impression was not just that he knew what he was talking about, but also that he addressed the issues with which he had been asked to deal in a fair and balanced manner.”

 

Learning points

So the key learning points are:

• Do ask your Instructing Party for feedback and to send you a copy of any judgment, particularly if you gave evidence in a court/tribunal.
• If you are aware of any previous criticism, you should declare this to any Instructing Party.
• If you have been the subject of criticism, take the time to reflect on the criticism and consider how you might amend your practice. Undertake further training where necessary.