Coldunell Ltd v Hotel Management International Ltd
[2022] EWHC 1290 (TCC)
This was a claim for dilapidations at a hotel in Surrey.
Both parties instructed experts. One was very familiar with the property having first been instructed by Coldunell in 2014, if not before, to deal with an insurance claim arising out of flooding.
The expert conducted numerous inspections over several years, including at the end of the Lease when they spent three to four days at the property taking photographs and then assisting with videos. The expert was also the contract administrator for the external works and boiler repairs, so had personal knowledge of what work was required and why.
HMI argued that the expert could not be independent because of the dual role both dealing with the dilapidations claim and acting as contracts administrator for the repair and remedial works. The Judge did not consider that this duality of roles prevented the expert from giving their genuinely held independent expert opinion to the Court. Given the sums at stake in these proceedings, around £1million, it was reasonable and proportionate for Coldunell to rely on the expert given the expert’s detailed knowledge of the condition of the property and works required.
The Judge formed the view “having carefully listened and observed” that the expert gave evidence in a forthright and measured manner, clearly accepting the limits of their knowledge in relation to certain matters and making concessions where appropriate. Overall, the expert was seeking to assist the Court and well understood the need to perform an independent role.
HMI’s expert regularly acted for parties in adjudications and from time to time as an expert witness; however, this was the first occasion that they had actually given expert evidence in Court. “Unfortunately,” the Judge considered it “plain” that the expert was arguing HMI’s case, even referring to it as “our case.” The expert did not answer counsel’s questions, challenged the veracity of the underlying factual evidence presented by Coldunell, relied on argument rather than expert opinion, and totally disregarded the merits of the argument being advanced by Coldunell
The situation was made worse by the obvious lack of credibility in relation to several of the opinions expressed; for instance, insisting that the boilers were “in good and substantial repair and condition” despite the substantial body of evidence to the contrary.
Further, the expert had not carried out any inspection of the property. Instead, their opinion was based on a view of the certain, (and not all of the) photographs. The Judge commented that the impression given to the Court was that the expert had taken a very “slap dash” approach, even to the limited evidence of condition that they considered relevant. In short, the expert was an “advocate” for their client and not that of an independent expert. The result was that the Judge felt unable to place any reliance on that evidence.
See Issue 270 [1] for further consequences of the expert’s conduct.
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