The good, the bad and the ugly: Coldunell Limited V Hotel Management International Ltd

The judgment in Coldunell Limited V Hotel Management International Ltd (see link to judgment below) is an interesting one for me. I have seen a lot of judgments which have highlighted poor performance from an expert, but this judgment from Veronique Buehrlen QC (sitting as a Deputy High Court Judge) highlights both good and poor performance as well as the lengths the other side might go to discredit your expert evidence.

The case involved a claim for dilapidations brought by the Claimant as the former freeholder of The Mitre Hotel, Hampton Court Road, Hampton Court, Surrey. The Defendant is a well-known hotel operator and the case considered whether the Defendant was in breach of its obligations under the Lease and, if so, what remedial works were appropriate and the reasonable cost of those works.

The good

So let’s start with the good.

The judge praised the claimant’s surveyor:

“He gave his evidence in a forthright and measured manner. He answered the questions put to him clearly accepting the limits of his knowledge in relation to certain matters. He made concessions in relation to certain items such as betterment to the boiler installation and the extent of the alleged furniture damage. I think that overall Mr. Lane was seeking to assist the Court and that he well understood that he had an independent role to perform.” (Paragraph 49)

The judge also mentioned both the Claimant and Defendant’s valuation experts, stating:

“There was a considerable amount of agreement as between the valuation experts which was very helpful and both experts gave their evidence in a measured and thoughtful manner seeking to assist the Court.” (Paragraph 57)

Forthright, measured, thoughtful, independent, and assisting the court. Key descriptors that any expert witness should be aiming for when giving evidence in court.

The bad

So where did it go wrong for the Defendant’s surveyor? Quite simply: he was not independent.

The judge commented:

“It was plain, throughout the course of the oral evidence given by Mr. Preston and from various paragraphs of his report……that he was arguing the Defendant’s case. A case to which Mr. Preston repeatedly referred as “our case”. This was illustrated time and time again by Mr. Preston not answering counsel’s questions, challenging the veracity of the underlying factual evidence presented by the Claimant, relying on argument rather than expert opinion and totally disregarding the merits of the argument being advanced by him. Mr. Preston’s expert report suffered from many of the shortcomings that were evident during his oral evidence.” (Paragraph 50)

But the judge goes on to highlight that the expert:

• lacked credibility by insisting alternate views despite a substantial body of evidence to the contrary
• had not carried out any inspection of the Property in relation to key items
• made no concessions based on the up to date photographic and video evidence provided by his counterpart; relying instead on photos in an older report which was an inventory rather than a survey
• made unfounded and inappropriate allegations

All of these made it clear that he was acting on behalf of the client and not fulfilling in his duties in providing independent expert evidence to assist the court.

The ugly

Having had the privilege of listening to several Barristers and members of the Judiciary speak about preparing to give evidence in court recently, I was interested to see an example of where a Barrister might seek to discredit an expert whose evidence is clearly solid.

The judge highlights that the Defendant argued that the Claimant’s surveyor “could not be independent because he had performed a dual role both dealing with the dilapidations claim and as contracts administrator for the repair and remedial works.” However the judge dismissed this as a conflict of interest on the basis of his “genuinely held independent expert opinion to the Court”. The judge felt that it was also entirely reasonable that having completed his report he could be appointed to oversee the necessary works.

Counsel then argued that the expert had been “obstructive, argumentative and defensive in his answers to cross-examination and accused Mr. Lane of giving misleading answers and being untruthful”. The judge highlighted that apart from one instance when his answers seemed confused this was completely unfounded.

Counsel also “criticized Mr. Lane in relation to his evidence as to his discussions with Mr. Hardwick as to which areas of the Property a hypothetical purchaser would substantially refurbish and the impact of those discussions on Mr. Lane’s estimated repair costs”. The judge conceded that Defendant’s counsel, Mr Lees:

“was on firmer ground. The apparent analysis set out in the relevant schedule where some items of work were included but not others did not always make sense. Mr. Lane said he had formed a view as to what the bottom line should be and then reworked the figures going to make up the total figure but I agree with Mr. Lees that that that was not entirely satisfactory. However, I do not think that is anywhere near a sufficient basis on which to disregard Mr. Lane’s evidence as a whole as Mr. Lees sought to persuade me to do.”  (Paragraph 48)

Similarly, the defendant also tried to discredit the Claimant’s valuation expert:

“Once more the Defendant sought to cast aspersions over the evidence of Mr. Hardwick on the basis that his firm had dealt with the Claimant for many years and that he and one of his colleagues had handled the marketing and sale of the Hotel. However, as Mr. Hardwick explained there was no ongoing relationship between his firm and the Claimant and he did not feel compromised. Further, he was providing evidence of value in September 2016 whereas his involvement in the marketing of the Hotel did not start until May 2019. I did not consider that Mr. Hardwick’s involvement in the marketing and sale of the Property in May 2019 prevented him from giving his honest professional opinion as to the value of the Hotel in September 2016. That opinion was not always favourable to the Claimant. For instance, Mr. Hardwick made clear that not all breaches of the covenants would impact the price a hypothetical purchaser would be willing to pay. His view was also that a hypothetical purchaser would replace all the bathrooms. Accordingly, the Claimant was unable to pursue any claim in relation to the condition of the ensuite and other bathroom facilities.” (Paragraph 55)

So what can we learn from this case?

A key takeaway for me from this case is that when preparing for court, you may wish to consider that counsel may try to discredit you as an expert. And if they do, how might they go about that? If there are any possibilities that they might cite a conflict of interest as they have done in the above case, can you clearly demonstrate your independence and why there is no conflict? And remember the test for any expert evidence: would your evidence be the same if you were instructed by the other side?