EXPERT EVIDENCE – SHOULD YOU FRET ABOUT WHAT THE EXPERT HAS QUOTED? I DON’T LIKE MONDAYS BUT YOU CAN KEEP THE GUITAR PARTS

In Moylett v Geldof & Anor [2018] EWHC 893 (Ch) Mr Justice Carr considered some aspects relating to the admissibility of expert evidence. Statements of others included in a report are not expert evidence, however the inclusion of those statements did not lead to the report being barred.

 

THE CASE

The facts of the case are not set out in the judgment. However the action is by the former pianist in the Boomtown Rats “Johnnie Fingers” (real name John Moylett) in a dispute as to who wrote the song “I Don’t Like Mondays”.

THE EXPERT EVIDENCE

The claimant had adduced an expert report.  That report was on the issue whether the song had most likely been written on the guitar on the piano.  The defendant objected to part of the report.

 

  1. Mr Mill, on behalf of the First Defendant, says that there are two fundamental objections to parts of the report. The first is that the report contains opinions from two leading professional guitarists in addition to the opinion of Mr Protheroe himself in respect of which permission had not been granted, permission in this case only having been granted to adduce the evidence of one expert. Secondly, it is said that the report goes beyond what is permissible for an expert by expressing an opinion on the ultimate question in the proceedings.

THE JUDGMENT

    1. In the present case I consider that in so far as Mr Protheroe has referred to demonstrations by two guitarists, he was not only entitled to do so but he was obliged to set out the fact that he had done this. In so far as he has formed his own opinions based on those demonstrations, he is entitled to do so. There is one passage in Mr Protheroe’s report at paragraph 11.3.8 which, in my view, is on the margins of admissibility. He has said that:
“Each one of my guitar colleagues, quite independently of each other, said that if one wanted to play this sequence on a guitar, the natural thing would be to play it in a semitone higher in the key of C major which is easy on the guitar and involves no contortions.”
  1. I should say that the issue to which the expert is addressing himself is whether or not this particular piece of music was composed on a guitar, in which case that would support the First Defendant’s ‘s account, or on a piano which would support, if correct, the Claimant’s account. In that particular section, Mr Prothero does not express his opinion at all. However, read in the context of the whole report, I believe, as he has repeatedly said, he is forming his own view based on what was demonstrated to him. He would have been obliged to say what the guitarists said to him in case Mr Mill wished to cross-examine him on what he was told.
  2. My view is that the Claimant is not entitled to rely upon anything that the two guitarists said as expert opinion evidence and Mr Tager has said that he is not intending to do so. Otherwise, I consider that this report, in so far as it deals with the two guitarists, is admissible. What weight is to be attached to that is a matter for the trial.
  3. Similarly, in respect of issues as to Mr Protheroe expressing the ultimate conclusion, namely whether it is more likely that the First Defendant or the Claimant composed the relevant music, it might have been preferable if he had said that his conclusions were based on whether a pianist or guitarist composed the music. However, I do not think that it is appropriate or necessary for me at this stage, or at all, to exclude this evidence. It is Mr Protheroe’s opinion, no doubt sincerely held, and it seems to me appropriate that he should express himself as he wishes to do so. What weight is to be attached to it, as I have said, is a matter for the trial.
  4. Mr Mill expressed a concern that he did not know whether his expert should reply or not to this. The answer is that, in so far as this report deals with whether this music was more likely to be composed on a guitar or on a piano, I consider that it is admissible and relevant expert evidence which may well be the subject of a reply. In so far as it expresses what Mr Protheroe was told by the two guitarists, it is not relied on as expert evidence and does not need an expert reply.