Summary

The claimant asserted misrepresentation and breach of a collateral contract by the defendant in respect of the supply of a vertical diamond cutting lathe for the claimant’s car wheel repair business. The judge found that the accountancy reports were not expert evidence but simply aids to understanding the details in a complex case.

Learning points

• Simply applying arithmetic rules to data supplied to you, is not expert opinion.

• Experts must clearly distinguish between any factual evidence they are giving and their opinion as an expert.

The case

The claimant asserted misrepresentation and breach of a collateral contract by the defendant in respect of the supply of a vertical diamond cutting lathe for the claimant’s car wheel repair business.

The expert evidence

The court considered written and oral expert evidence from experts in the fields of (1) Engineering and compliance and (2) forensic accounting.

The procedure with respect to factual evidence

The judge noted that all of the expert reports in the case, to a greater or lesser extent, sought to give at least some factual evidence. This was something experts often do, for example, because they have examined equipment, premises or other thing and give evidence on that they found. While noting that there was nothing wrong with this in principle, he pointed out that “as a matter of procedure, such evidence should have been given in a factual witness statement exchanged with other such statements, rather than being left to an expert report.

The judge referenced the Commercial Court Guide, 2022, paragraph H2-12, which states:

“Where the evidence of an expert is to be relied on for the purpose of establishing primary facts, as well as for the purpose of providing their opinion to the Court on a matter within their expertise, as for example where a surveyor, assessor, adjuster, or other investigator instructed as an expert witness will (also) give evidence about the condition of a ship or other property as found by the expert at a particular time, that part of the expert’s evidence which is to be relied upon to establish the primary facts is to be treated as factual evidence and should be put into a factual witness statement from the expert, to be exchanged in accordance with the order for the exchange of factual witness statements. It is not proper practice to postpone disclosure of a party’s factual evidence by including it in or serving it with expert reports.”

He also noted that similar views are expressed in the Chancery Guide, 2022, paragraph 9.12.

The principles regarding expert evidence

The judge referred to his recent decision in Mashal v Javed [2025] EWHC 3195 (Ch), in which he set out some of the principles regarding expert evidence:

• Expert evidence within section 3  of the Civil Evidence Act 1972 can be tendered only by someone who is qualified as an expert. Practical experience, rather than formal qualifications, may be sufficient in some cases.

• The ‘expertise in question’ must be

‘a recognised expertise governed by recognised standards and rules of conduct capable of influencing the court’s decision on any of the issues which it has to decide’.

• Someone who does possess a recognised expertise is an expert for this purpose only when giving an opinion within that expertise. For example, an accountant may be an expert within a particular field (for example in relation to the preparation of accounts and conformity with relevant standards) but is not without more an expert in relation to anything which lies outside that field (for example expertise in demergers).

• And, by virtue of CPR rule 35.1,

“Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings”.

The judge concluded that “[i]n other words, in addition to the need for a witness who is qualified as an expert, within a recognised expertise, giving an opinion within that expertise, the evidence in question must also be ‘reasonably required to resolve the proceedings’.”

The accountancy evidence

Mr H, for the claimant, and Mr P, for the defendant, were called to give expert accountancy evidence. The judge started by noting that the evidence from these experts needed to be expert evidence, given by an appropriate expert, bearing on the issues in the case, and “reasonably required to resolve proceedings”.

The evidence of Mr H

Mr H had used the information provided by the claimant, as well as information from an internet search, to carry out arithmetical calculations as well as make a number of assumptions, such as the discounts that might be applied. The judge noted that this was not much more than number crunching. Moreover, the decisions on the calculations and assumptions to make were predicated on Mr H’s understanding of how the law in calculating compensation for wrongs operates which, as Mr H pointed out, he was not an expert in.  

The judge could not see how Mr H had employed his accountancy expertise in what he had done.  He had not produced any accounting records to statutory standards, audited such records, or even valued anything by reference to those records. All he had done is to apply arithmetical rules to data supplied to him. This was, the judge pointed out, arithmetic not expert opinion.

Further, Mr H had no experience working in the car wheel repair industry and did not know what costs would be incurred or what prices could be charged. Rather he had to be supplied with this information.

The judge concluded that Mr H was not an expert for the purposes of this case, and the evidence he supplied was not expert evidence for the purposes of section 3(1) of the Civil Evidence Act 1972.

The evidence of Mr P

The judge found the position of Mr P, who was also not an expert in the car wheel repair business, to be no better. He had essentially gone through the same arithmetical exercise as Mr H without employing his accounting expertise.

Mr P also made comments on the material placed before Mr H as well as the absence of materials before Mr H. The judge pointed out that submissions on the evidence should be made by counsel at trial, not in an expert accountant’s opinion.

The judge’s conclusion on the accountancy evidence

While the judge found that the reports of Mr H and Mr P were of assistance to the court, they were of assistance in the same way as tables of calculation of loss. Like those tables, the reports were not expert evidence but simply aids to understanding the details in complex cases. They were, at their highest, a kind of hearsay evidence, presenting other evidence in a different form or simply a kind of written submission on the evidence.