Expert banking evidence restricted to what is reasonably required to resolve the dispute

06/11/2006

The Commercial Court has ruled that "an expert is entitled to examine an assumed set of facts, which can include assumptions as to what a particular person or party has or has not done, and then give an opinion on whether or not the actions (or inactions) of the relevant person fall below the standard of practice in that profession. Such an opinion can, indeed must, be based on the experience of the particular expert. But the expert's opinion must not reflect what he would or would not have done in certain circumstances. Instead it should say what would reflect the proper standard of practice in the profession concerned in the circumstances being considered."

In a long running banking dispute which had involved several contested interlocutory applications and large quantities of documents and which is listed for a four month trial, the Court was asked to consider what of the existing expert banking evidence was inadmissable and/or inappropriate and/or was not reasonably required to resolve the proceedings.

Section 3 of the Civil Evidence Act 1972 states that the opinion evidence of a witness called in any civil proceedings on any relevant matter on which the witness is qualified to give expert evidence, shall be admissible in evidence. The admission of expert evidence is subject to CPR Part 35.1 which provides that "expert evidence shall be restricted to that which is reasonably required to resolve the proceedings".

Mr Justice Aikens ruled that it was "inevitable when there is a dispute between commercial entities that covers a long period of time (as this case does) and concerns a very large sum of money, that a huge amount of documents will have to be considered. There is a natural tendency of parties and their advisors to consider employing experts to assist in digesting this material, particularly if it relates to any area that might be recondite, such as trading in Russian debt in the 1990s. There is a tendency to think that a judge will be assisted by expert evidence in any area of fact that appears to be outside the "normal" experience of a Commercial Court judge. The result is that, all too often, the judge is submerged in expert reports which are long, complicated and which stray far outside the particular issue that may be relevant to the case. Production of such expert reports is expensive, time - consuming and may ultimately be counter - productive. That is precisely why CPR Pt 35.1 exists. In my view it is the duty of parties, particularly those involved in large scale commercial litigation, to ensure that they ad-here to both the letter and spirit of that Rule. And it is the duty of the court, even if only for its own protection, to reject firmly all expert evidence that is not reasonably required to resolve the proceedings."

JP Morgan Chase Bank and others v Springwell Navigation Corp [2006] EWHC 2755 (Comm)

Back to news archive