Legal: In fear of favour

I confess that I winced at the lambasting of the expert in a recent construction case. The judge was (let’s not pull our punches) totally peed-off by what he described as the expert’s partisan, lopsided QS evidence. A whole six pages of the judgment were dedicated to slamming the chap. It was as though he were on trial with no chance of appeal. I wince again and again. 

No, I won’t give you his name. Nor the names of the other three experts in the same trial on the same side, all of whom were, said the judge, biased. And not long ago on this page I refused to name the expert architect in another trial, who was slammed for being honest. He argued in a publication that an expert witness was human and hard-pressed not to be biased. I refused to name yet another expert in a trial about whether a building design in Rotterdam was copied by the architect from a student architect’s design. The issue was bias. There are others I could name, but won’t. 

The real problem with bias is that the last person on earth to see the appearance of bias is the person accused of it. I guarantee you in real life this expert QS had not one ounce of actual bias 

They had all failed, it was said, to adhere to the principles of expert evidence; it is the approach formulated in 1993 by Mr Justice Cresswell in the shipping case known as the Ikarian Reefer. These Cresswell Principles are founded on an essential ingredient of being impartial and independent, at arm’s length from the paymaster. 

The task of the expert QS in this particular litigation case was to carry out an independent valuation of the completed works. He firmly believed that the method of carrying out the independent valuation was not at all like the opinion of the QS expert on the other side. Nor that of his client. And since he was, and had a duty to be, independent of his client, according to the Cresswell Principles in the Ikerian Reefer, he proceeded with his expert report in what he said the contracting parties lawfully intended in their contract.

The judge said there was no such basis for the direction taken by the expert. He began to suspect that the expert QS was running a valuation opinion to bolster his client’s chances of success. That expert view produced figures hugely less than his opponent – who, by the way, followed the rules he was told applied in this contract. 

By now the shopping basket of circumstances pointing to partisanship or bias was totting up. The expert, said the judge, was working backwards from the end result that he, and his client wanted. It so happens that the expert QS is also a highly qualified lawyer. The error was to use all his expertise to interpret the contract. He was independently exercising legal skills and went outside his remit to merely value the works. It was argued successfully that he committed the mortal sin of bias. I suspect what really happened was that he took independence to the ultimate length – and that isn’t bias. But he took charge; and he shouldn’t have. He looked to be the advocate, and that gave the appearance of bias.

The real problem with bias is that the last person on earth to see the appearance of bias is the person accused of it. I guarantee you that in real life this expert QS had not one ounce of actual bias. 

Now let us go back to the Cresswell Principles in that famous case. That distinguished judge really did understand how crucial independence and impartiality are. His test, from 1993, still prevails today. Justice Cresswell retired from the English bench in 2007. He then made himself available and was in demand in other parts of the world to hear high-level cases. One such was a dispute in the Cayman Islands, which continued on and off for three years. During that time, he was also in line for another judicial post in Qatar. So far so good. 

But in the long-running Cayman litigation, one of the senior participiants for one side became a member of the judicial appointments board in Qatar. Can you see what is coming? Sir Peter Cresswell was invited to recuse, pack up and leave the stage. Bias was said to arise. 

This was not actual bias, it was unconscious bias. It was said he had an unwitting possibility in the Caymans of favouring one party, given his enthusiasm to take appointments in Qatar. He could not see bias in the headlights. But three judges in the Court of Appeal could. There was an appeal to the Privy Council in London where five law lords heard the appeal. Four of the five agreed that he satisfied the test for bias and should go. That was seven out of eight judges in total. 

My eye lands on the lone dissenting voice of Lord Sumption: he had no stomach for condemning this highly distinguished English judge. He was, he said, entirely capable of deciding cases without fear or favour, affection or ill will. Lord Sumption would have no truck with the hypothetical possibility of unwitting bias. 

It reminds me of another, now famous case: the Pinochet trial when Lord Hoffman was found to be ostensibly biased because his wife voluntarily worked for Amnesty International, a charity campaigning against General Pinochet. When dismissed for bias by the seven House of Lords judges, Lennie Hoffman said the “connection” of his wife and Amnesty and him was “neither here nor there”. Quite so, some say. 

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple