Beattie Passive Norse Ltd & Anr v Canham Consulting Ltd (2)

[2021] EWHC 1116 (TCC) 

One of the issues Mr Justice Fraser had to consider here, was the nature of the expert evidence. In doing so, he provided a helpful analysis of the reasons why he preferred the evidence of one of the structural engineering experts to the other. Those reasons included the following, that the expert:

1. "[C]onstantly embellished his criticisms of Canham, and, I regret to say, exaggerated.”
2. “[C]onstantly introduced new concepts or issues, which were not identified in his report.” The result was that “he appeared to be seeking to bolster the Claimants’ case”.
3. Relied on material that had no relevance to the issues under consideration in this trial. 
4. “[C]hanged his agreement with, and reliance upon, the work of his associate.” The Judge suggested that because the point did not assist the claimant’s case, he disavowed it.
5. Went beyond his own expertise, giving geotechnical engineering evidence not structural engineering evidence. The Judge agreed that this demonstrated a lack of objectivity.
6. Did not, as his opposite number had, sensibly agree with points put to him, whether they advanced his client’s case or not. As his cross-examination demonstrated, he failed to approach his expert exercise applying a completely objective approach to the expert issues. 
7. Did not, unlike his opposite number, give the Judge the impression that his evidence would have been exactly the same had he been instructed by the other side.
8. Introduced concepts into his cross-examination which were not issues for the court.
9. Took positions on contested issues of fact. This was a point the Judge said had “been made in many cases” and was “so obvious as to go without saying”. Further, if a witness of fact makes a telling concession, then this was something that experts ought to take into account when they come to give their own oral evidence. The expert here did not change or alter his position. In the words of the Judge: “He effectively ignored it, again (probably) because it was not helpful to the claimants’ case.”

Unsurprisingly, the Judge preferred the evidence of the other expert witness. 

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