Hired gun takes a bullet

who’s up for being an expert witness? There is quite a demand in the world of building and civil engineering disputomania. Pay’s good, too. So good that some folk give up being a builder or whatever to become a full-time expert. There is a snag though, and according to a recent High Court decision, it is a whopping big one.

Human nature being what it is, there is a tendency to want the side that hired you to win the contest. Having been invited to be team A’s expert and to hold forth on why the widgets have gone wobbly, then to receive a not inconsiderable day-work rate for writing reports and attending meetings, you will naturally tend to become partisan. Some say that the expert becomes a hired gun. It’s the way we behave: we are team players.

For the first time that I know of, a judge has given leave for a party to a court case to seek a litigation costs order from an expert appointed by the other side. The costs are at £400,000. No it wasn’t a construction case (Jonathan Guy Anthony Phillips vs Robin James Symes) but don’t think the new mood doesn’t apply to you experts in building disputes; it does.

The trial was complex, but it included an issue about the mental fitness of a Mr Symes to instruct his solicitors and give evidence.

This chap and a Mr Michailidis shared a home and built up a successful business trading in antiquities over 30 years. Mr Michailidis died in an accident. The administrators of his estate, acting on behalf of the family contended that one of the companies in the two men’s complex business affairs was a partnership asset worth millions and this was to be wound up for the benefit of the dead partner’s estate and beneficiaries.

In the course of the case, a medical expert produced a report that Mr Symes, as a stroke victim in 1981, caused him to be unfit not only to give evidence but unfit in all those years to manage his own affairs. That, said the judge, was a staggering conclusion and would mean that every transaction Mr Symes had carried out was capable of being set aside because he lacked capacity to understand any such transaction. It would mean that all of the solicitor’s firms that had acted for Mr Symes over the years would be in breach of their warranty of authority, meaning they were unauthorised to act on behalf of Mr Symes and had a potential liability of £7m for the losses thereby suffered by Mr Michailidis’ estate.

An expert, said the administrators, could no longer be a hired gun and was not there to prosecute a case for the benefit of a client

In short, the opinion of the expert was crucial.

The judge threw out his opinion. There was, he said, a considerable amount of evidence that showed Mr Symes was well and able to fulfil all those tasks over the entirety of the period. Of this expert the judge said: “His evidence was coloured by his lack of objectivity […] he saw his position as being one which required him to argue his case rather than present evidence in an objective way for the court to consider.”

A few months later the administrators claimed they could show this expert had breached his duties to the court and sought permission to pursue him for wasted costs at yet another trial to demonstrate his breach of duty. An expert, said the administrators, could no longer be a hired gun, was not there to prosecute a case for the benefit of a client and, if an expert acted in flagrant disregard of that duty, it might amount to contempt of court, or even perjury. The expert might be disallowed his fees and referred to his professional body for disciplinary action. But that did not compensate the victims of an expert’s dereliction of duty, namely the parties.

The judge gave permission for this expert to face a claim at trial on whether or not the evidence he gave was in breach of his duties – duties higher than mere negligence. There ought, said the judge, to be a fair opportunity to recover the £400,000 legal costs. The nature of the expert’s duties arose from recent cases and from the civil procedure rules. The expert had signed his reports and claimed that he had “complied with CPR” and was acting independently of his retainer. He had made a statement of truth.

Comfy? Still want the job? Good, come on board but watch out for ordinary human behaviour.