Summary
The claimant asserted that the defendant was required to transfer title in a vessel at the expiry of the bareboat counterparty between them. The judge noted that the claimant’s witness on insurance broking had essentially no experience in the matter for expert evidence and his views appeared to be based on conversations with unidentified others, rather than his own experience of testable research.
Learning points
Learning points for experts
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You risk damaging credibility if you cannot demonstrate a reasonable interest in the proceedings and the evidence you are providing.
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Unless it is normal practice in your field, it is better not to task your instructing solicitor with administrative functions relating to the joint report, such as transcribing and formatting the draft.
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Make sure you understand and have checked the accuracy of any datasets you rely on.
Learning points for 'occasional' experts
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Make sure that you obtain some training in your role as an expert witness to ensure that you understand and are able to comply with your duties.
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Make your instructing party aware of any conflicts of interest which could be perceived as impacting your ability to provide independent expert evidence.
Learning points for instructing parties
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When you instruct an 'occasional' expert, make sure that they have had some training in their duties as an expert witness. Double check that their reports comply with the applicable rules and regulations.
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Ensure that the experts you instruct have expertise in the matters for expert evidence and are able to understand any datasets without relying on the input of others.
The case
This case was a dispute as to whether the defendant, who owned the vessel Victor I, was obliged under the terms of the bareboat counterparty (‘BBC’) it had entered into with the claimant, to transfer title in the vessel to the claimant on the expiry of the BBC. The defendant refused to transfer title asserting that it was owned money by the claimant under both the BBC and the Management Agreement which, under the terms of the BBC, would mean that the obligation to transfer would not arise. The claimant contended that no relevant sums were owing.
The expert evidence
The main issues for expert evidence were:
Expert evidence on US Law
The experts in US Law were Mr W for the claimant and Mr T for the defendant. The judge noted that both were helpful and clear witnesses who had co-operated sensibly to provide a very useful joint statement, listened carefully to questions and provided answers of appropriate length, and made appropriate concessions.
Experts evidence on insurance broking
The parties adduced expert evidence on whether the defendant overcharged the claimant for Additional War Risks. The insurance broking experts were Mr M for the claimant and Mr K for the defendant.
The judge noted that “[t]here was a flavour of disengagement about [Mr M’s] evidence overall”. Mr M gave his evidence in a laconic manner that sometimes came across as a little disinterested, which was reinforced by evidence that (1) the instructing solicitors has drafted the joint report he sent to Mr K, (2) he had not signed his own report, and (3) he used data without fully understanding the makeup of the data set and without checking it. While the judge concluded that the instructing solicitors had not drafted the joint report, they had, unusually, been tasked by Mr M with the transcription and formatting of what he considered should go into the joint report.
The judge found Mr K to be an impressive witness but she noted that she had to scrutinise his evidence particularly closely because “[Mr K] was clearly unusually close to the party for whom he was acting”. He had placed business for a number of the defendant’s companies and worked closely with their executives and owners.
The judge concluded that “[i]t is fair to say that the expert evidence for both sides had problems. On the one side, [Mr M’s] experience was essentially non-existent – he had no experience in the war risks market and his views appeared to be based on conversations with unidentified others, rather than his own experience of testable research. On the other side [Mr K’s] links to [the defendant] meant that his evidence required to be closely examined.”
The judge noted that she slightly preferred the evidence of Mr K to that of Mr M because:
1) Mr M’s expertise was not in the war risks market, and it was clear that he was to a considerable extent dependent on input and data which had been provided to him;
2) Mr K did have more relevant expertise and had taken a proactive and analytical approach to the material;
3) Mr M was not very clear or able to assist on the contents of the dataset on which he relied;
4) While both made assumptions about where within the range to pitch the market rate, Mr K took a broadly balanced approach (the middle) whereas Mr M took the end most favourable to the party instructing him.