I DIDN'T MEAN IT WHEN I SIGNED THE JOINT REPORT: WHAT HAPPENS WHEN EXPERTS CHANGE THEIR MINDS?

The judgment of Mr Justice Leggatt in Iraqi Civilians -v- Ministry of Defence [2015] EWHC 1254 (QB) contains some interesting passages in relation to an expert reneging from the contents of a joint report. In particular what is the appropriate approach when an expert states they signed a joint-report in error and attempts further evidence to show a change of mind. This was an unusual case but provides some insight into the approach that judges take when experts have a “change of view”.

THE CASE

This was a test case relating to the handover of Iraqi civilians by the Ministry of Defence to US forces. The claimants alleged they were mistreated. The claim is that the UK government is liable.  The applicable law was Iraqi law and experts were instructed on both sides to inform the court of the relevant legal principles.

KEY POINTS

• An expert is entitled to change their mind.
• However they must explain precisely why they have done so.
• The judge found that the expert knew precisely what he was signing and, at the time of signing the joint report, agreed with it.
• The “new” material that came after the joint report was given very little weight.

THE LAW

There is no doctrine of precedent in Iraqi law and the views of prominent legal scholars is of some importance.  The judge considered the view of each expert on an important part of the Civil Code – Article 211.

1. The impression given by Mr Dawood’s report is that he, like Professor Hamoudi, regarded the application of Article 211 as depending on the comparative degree of fault of the defendant who is seeking to rely on that provision and the third party whose act is said to be the cause of the injury; and that, where someone facilitates an intentional act, it is necessary that the facilitation was itself intentional in one of the three ways identified by Mr Dawood in order to avoid the application of Article 211 and give rise joint liability. The implication is that negligence would not be sufficient.
2. This impression was confirmed by the joint experts’ report. In that report the experts agreed that a causer (A) can seek to excuse itself from liability by arguing that the general requirements of Article 211 are satisfied and that the fault of another person (B) was the true cause of the harm. The report continued:

“This only applies when the fault of B is so much more serious than the fault of A that it can be said to ‘drown out’ the fault of A. For example, a servant who leaves the door of his master’s car open has committed a fault of negligence, and a thief who steals the car has committed a fault of intention. … The civil court would hold that the servant was not civilly liable because the intentional fault of the thief ‘drowned out’ the negligent fault of the servant under Article 211, subject to a finding that the general requirements included in the text of Article 211 are satisfied.”

There therefore appeared to be agreement between the experts on the effect of Article 211 in so far as it is relevant to the preliminary issue.

1. On the day before the trial, however, the claimants’ solicitors gave notice that Mr Dawood “does not agree” with two paragraphs of the joint experts’ report. Those paragraphs contained statements to similar effect to the passage quoted above (although the passage quoted above was not identified as one which Mr Dawood did not agree with). It was not apparent whether Mr Dawood was saying that the joint experts’ report did not accurately represent his view at the time when he signed it or that he had since changed his mind. Nor was any explanation given at that stage of his reasons for disagreeing with the paragraphs in question. The first clue was given on the morning of the hearing when Mr Dawood produced an extract from a commentary on which he wished to rely dealing with the equivalent provision to Article 211 in the Egyptian Civil Code. The interpretation expounded by the author, Dr Sulaiman Marqis, is very different from that found in the commentaries of Sanhuri and Hakim cited by Professor Hamoudi and makes no reference to “drowning out” or any similar concept. Marqis suggests that the provision is applicable only where (1) the foreign cause made the harm inevitable in the sense of being impossible for the defendant to prevent and (2) the cause is one which the defendant had nothing to do with so that it is not attributable to him.
2. In his oral evidence Mr Dawood explained that, after the meeting between the experts, their joint report was drafted by Professor Hamoudi. Mr Dawood said that he had very little time to read over the draft report before he had to leave for the airport to catch a flight, and that he did not notice that what was said in the draft report about Article 211 and “drowning out” did not accurately represent his view. Mr Dawood also said that, at the time of the experts’ meeting, he had no basis for disagreeing with what was said about Article 211 and “drowning out” in the commentaries on which Professor Hamoudi relied. It was only later when he reflected further on the point and looked at the commentary by Marqis that he concluded that the interpretations of Article 211 given in the commentaries relied on by Professor Hamoudi are mistaken.
3. In so far as Mr Dawood suggested that the joint experts’ report did not accurately represent his opinion at the time when he signed it, I reject his evidence. The meaning of Article 211 was evidently discussed at the experts’ meeting and, although of course possible, I consider it unlikely that Professor Hamoudi had misunderstood or misrecorded Mr Dawood’s view on the point when he drafted the joint report. It is also unlikely that Mr Dawood, even if he did not read the draft report with the care to be expected before he signed it, could have failed to notice either then or soon afterwards the passages which record a common view about “drowning out”, giving the example of the negligent driver and the thief. Furthermore, that view is, as already indicated, consistent with what Mr Dawood had said in his own expert report. Finally, Mr Dawood’s evidence that he had no basis on which to disagree with the views of Sanhuri and Hakim at the time of his meeting with Professor Hamoudi makes it all the more likely that he knowingly agreed at that stage to what was written in the joint experts’ report.
4. An expert is of course entitled to change his mind. It was not, however, entirely clear from Mr Dawood’s oral evidence to what extent he had done so. Thus, in cross-examination he initially agreed that there are cases in which Iraqi courts will find that Article 211 applies because a person’s fault is “drowned out” by the fault of another. Later, however, Mr Dawood claimed that the concept of “drowning out” is only relevant in traffic law and not as part of the general law of obligations. I understood Mr Dawood’s basic position to be that an Iraqi court would simply apply the express wording of Article 211, which contains no reference to “drowning out”. He considered that Article 211 does not apply to excuse from civil liability the servant who negligently leaves his master’s car or house unlocked with the result that the car is stolen or the house is burgled because it cannot be said that the act of the thief or burglar is a “foreign cause beyond [the] control” of the servant: in so far as the commentaries of Sanhuri and Hakim suggest otherwise, their views are not consistent with the language of Article 211. In re-examination, Mr Dawood further asserted that commentaries are not referred to in the Iraqi courts and that an Iraqi judge would simply look at the wording of the relevant articles in the Civil Code when deciding how they should be applied….

1. It would be a strong thing for an English judge to conclude that the language (as translated into English) of a provision in a foreign legal code, which forms part of a legal system not based on English law and with which the English judge is not acquainted, is so clear that the opinions as to its meaning of the leading jurists in the foreign legal system should be rejected. I do not accept Mr Dawood’s assertion that an Iraqi court would not have regard to the views of Sanhuri and Hakim. I accept his evidence that the judgments given by Iraqi courts are extremely short and seldom, if ever, refer expressly to commentaries. However, I also accept Professor Hamoudi’s evidence that the commentaries of Sanhuri and Hakim are the medium through which lawyers in Iraq are taught about the civil law of obligations and are accorded considerable respect by Iraqi lawyers and judges. Mr Dawood agreed that Sanhuri was the drafter of the Iraqi Civil Code and that Hakim is a leading commentator. He himself cited a commentary on the Egyptian Civil Code in support of his views, albeit one which there is no evidence to suggest has a status in Iraq in any way comparable to that of Sanhuri and Hakim. I think that I can also take notice that in civil law systems where there is no doctrine of precedent – including that of France from which the Iraqi Civil Code is ultimately derived – considerable weight is often given to the opinions of eminent legal scholars. In any event I am satisfied that such weight would be given to the opinions of Sanhuri and Hakim by an Iraqi court if the present preliminary issue were being decided by a court in Iraq. There is, on the other hand, no evidence to suggest that an Iraqi court would have regard to the views of Marqis, at any rate in so far as they conflict with those of Sanhuri and Hakim.
2. I accept the view of Professor Hamoudi, founded as it is on the commentaries of both Sanhuri and Hakim, that in applying Article 211 an unlawful act of a third party who is not in collusion with the defendant and over whom at the time the act occurs the defendant does not exercise any meaningful control would be regarded by an Iraqi court as a foreign cause beyond the control of the defendant and that the critical question to be asked is whether the fault of the third party “drowns out” the fault of the defendant.

THE CONCLUSION

1. Applying these findings to the present cases, I conclude that, if the claimants are able to prove that after being handed over by UK forces to the armed forces of the United States they were subjected to serious and deliberate ill-treatment by US soldiers, then, to establish that the defendant is jointly liable for their injuries under Iraqi law, it will not be sufficient to show that the defendant owed a duty to take care not to expose them to a risk of ill-treatment at the hands of US forces and was negligent in exposing them to that risk. In order to establish joint liability for their injuries, it will be necessary for a claimant to prove that the British soldiers or officials responsible for the decision to transfer him to the custody of the US forces had one of the three mental states identified by Mr Dawood in his expert’s report. Thus, it will be necessary for the claimant to prove: (a) an intention to facilitate the claimant’s ill-treatment; or (b) actual foresight that the claimant might suffer such ill-treatment, coupled with failure to act in accordance with a legal duty to protect the claimant; or (c) contemplation and acceptance of the risk that transferring the claimant would facilitate his ill-treatment.