Expert witness: a cautionary tale [18 December 2015]
Allseas UK Limited (“AUK”) was the Principal Contractor engaged by Total E&P UK Limited ("TEP") to carry out both the offshore and onshore works involved in the laying of gas pipelines, which formed part of the Total Laggan-Tormore gas field development at Sullom Voe, on Shetland. By a contract dated 18 November 2010, AUK engaged Van Oord UK Limited and SICIM Roadbridge Limited (“OSR”) to carry out the procurement, supply, construction, installation, flooding, cleaning, gauging and testing of pipelines, and certain on-shore works.
A separate and discrete area of work, referred to as the beach valve, was significantly delayed and not completed until July 2014.
OSR made three disruption and prolongation claims against AUK arising out of unforeseen ground conditions, the delay in the supply by AUK of the 55 tonne beach value and cabin, and the failure on the part of AUK to obtain permission for temporary crossings. Those three claims had a total value of, circa, £10 million and the dispute proceeded to trail.
Each side called a quantum expert: OSR called Mr Lester and AUK called Mr Kitt. During the trial, an issue arose in connection with the credibility of Mr Lester's expert evidence.
Justice Coulson endeavoured to give Mr Lester the benefit of the doubt, particularly given his admission that he had not previously prepared a written expert's report or given evidence in the High Court, and because he was aware that Mr Lester was dealing with a serious illness in his family. However, for the 12 reasons set out below, Justice Coulson had no option but to conclude that Mr Lester’s evidence was “entirely worthless”:
1. Mr Lester repeatedly took OSR's pleaded claims at face value and did not check the underlying documents that supported or undermined them.
2. Mr Lester only looked at the witness statements prepared on behalf of OSR - he did not look at the witness statements prepared on behalf of AUK.
3. Mr Lester refused to value the claims on any basis, or on any assumption, other than the full basis of the OSR claim, thus Mr Lester's figures were all skewed in favour of OSR, and there was nothing the other way.
4. Not only did Mr Lester base his promotion of the OSR claims on made-up or calculated rates, but he never once considered, let alone formulated, claims based upon the actual costs incurred by OSR.
5. Mr Lester failed to address obvious matters which were raised in Mr Kitt’s first report.
6. Mr Lester was forced to concede that he was not happy with any of his reports.
7. Mr Lester repeatedly accepted that parts of his reports were confusing and accepted on more than one occasion that they were positively misleading.
8. Mr Lester appended documents to his original report which he had either not looked at at all, or had certainly not checked in any detail.
9. Mr Lester made repeated assertions in his reports that appeared to be expressions of his own views. They were certainly not attributed to anybody else. But in cross-examination, it was revealed that these assertions came straight from discussions he had had with OSR witnesses.
10. Mr Lester stated that he had prepared the schedule to the third joint statement, however, the schedule had been produced by Mr O'Rourke and Mr Mulcair of OSR. Further, rather than checking the schedule, Mr Lester had only discussed the schedule with Mr Mulcair, and had accepted what Mr Mulcair had said about it.
11. Mr Lester, instead of checking the claims himself, had preferred to recite what others had told him, even though what he had been told could be shown to be obviously wrong.
12. Mr Lester had never considered valuing the line items by reference to fair and reasonable rates. He had not, even as a cross-check, investigated whether the figures he was so carelessly promoting were actually fair or reasonable, or instead represented some kind of windfall for OSR.
The judge, in disregarding Mr Lester’s evidence in its entirety, concluded that:
“Mr Lester allowed himself to be used, whether wittingly or otherwise, by OSR and Dal Sterling (those with the most to gain in this litigation) to act as their mouthpiece. It was almost as if they were trying to see how much of their claim they could get past Mr Lester, and then Mr Kitt, and ultimately the Court. It made a mockery of the oath which Mr Lester had taken at the outset of his evidence, even though, as I have said, there were some extenuating circumstance…for all these reasons, I am bound to find that Mr Lester was not independent and his evaluations…were neither appropriate nor reliable…”.
The case is an important reminder of the need for impartiality on the part of an expert witness and the requirement for expert witnesses to adhere to the acceptable process and procedure. The case also highlights the obligation upon the legal team to supervise the expert witness and ensure the expert acts independently, particularly in circumstances where that expert is inexperienced.
The judge made clear that the inexperience of an expert witness, or any other personal circumstances which may affect the expert’s performance, are incapable of mitigating against the poor performance of an expert witness.
In order to avoid the fate of Mr Lester, an expert witness and the legal team should have regard to Justice Coulson’s reasoning in the case, and the applicable procedural rules, such as Civil Procedure Rule 35 and Section 13 of the TTC Guide.