In LIC Telecommunications SARL & Anor v VTB Capital Plc & Ors [2019] EWHC 1747 (Comm)  Mrs Justice Moulder made some telling observations in relation to the expert evidence.


The application concerned whether certain proceedings were duly authorised. This required expert evidence as to foreign law and the judge had to make an assessment of the experts that were called.


  1. The defendants relied on the evidence of Dr Kinsch, a practising lawyer in Luxembourg and an honorary professor of the University of Strasbourg. Dr Kinsch prepared a report dated 9 November 2018, and three supplemental reports dated 27 March 2019, 18 April 2019 and 30 April 2019.
  2. The claimants relied on the evidence of Mr Thewes, a practising lawyer in Luxembourg and a lecturer at the University of Luxembourg. Mr Thewes prepared a report dated 18 January 2019 and two supplemental reports dated 27 March 2019 and 18 April 2019.
  3. The experts also produced a joint memorandum dated 6 March 2019.
In order to resolve certain of the issues where there is a conflict in the evidence of the experts, it is necessary for the court to make some observations about the approach of Mr Thewes. Mr Thewes referred at one point in cross examination to being an advocate; it seemed to me that Mr Thewes was inclined to put forward arguments in defence of a proposition even if such proposition appeared to be contradicted by objective evidence and thus Mr Thewes appeared to be acting on occasions as an advocate for a particular position rather than providing objective evidence to assist the court. One particular example was his evidence as to whether the Luxembourg court would hold that a conflict of interest under Article 441-7 of the Luxembourg Company Law (the “LCL”) applied only to a director having a “financial interest” or whether it would also apply to a functional conflict. It was difficult to follow Mr Thewes’ arguments for a broader interpretation notwithstanding the clear language of Article 441-7 which refers expressly to a “financial interest”, and his conclusion that he did not know what position the Luxembourg court would take. His response was lengthy and appeared to obfuscate rather than elucidate. Another example was his consideration of the Luxembourg and French law authorities on asymmetric jurisdiction clauses where he had failed to refer in his reports to certain cases even though he was aware of them, in circumstances where these were decisions which ran contrary to the opinions which he was expressing. Given the lengthy expert evidence which both experts had provided with extensive cross referencing to source material, I do not accept the explanation which Mr Thewes gave in cross examination that he sought to avoid burdening the court. As a result of the apparent approach taken by Mr Thewes, the court will exercise particular caution in evaluating the evidence of Mr Thewes. No such concerns arose in the evidence of Dr Kinsch and for this reason where the court has to resolve conflicts in the expert evidence the court is inclined to prefer the evidence of Dr Kinsch.