QUESTIONS TO EXPERT SHOULD HAVE BEEN PUT BEFORE THE TRIAL: THE WRITING MAY BE ON THE WALL FOR LATE CHALLENGES

For the second time in two days I am reporting on cases where judges made the point that issues relating to evidence should have been raised before trial.  Yesterday Mr Justice Zacaroli held that issues in relation to disclosure should have been raised prior to the hearing.  In  Singh v Jhutti & Anor [2021] EWHC 2272 (Ch) HHJ Richard Williams (sitting as a High Court Judge) stated that a challenge to expert evidence should have been made pre-trial.

“Paragraph 17 of the case management order dated 17 April 2019 provides that the “time for service of any question addressed to an expert instructed jointly or by another party is not later than 14 days after service of that expert’s report….Any such question shall be answered within 14 days of service.” If Mr Handy was to be questioned by reference to other signature documents then those documents could and should have been put to Mr Handy long before the trial so that he could have undertaken a proper analysis.”

THE CASE

The action related to the ownership and obligations of various properties. The claimant alleged that there was a written agreement that the defendants would sell the properties back to him.  The claimant relied on various written agreements which the defendants said were forged. The parties were given permission to adduce expert evidence on handwriting. The defendants obtained an expert report, the claimant did not. The claimant challenged the expert’s evidence at trial.

THE JUDGMENT ON THIS ISSUE

Expert evidence
Written evidence of Mr Handy
  1. Mr Handy compared copies of the Disputed Agreements against copies of 6 reference documents for each of the defendants. The reference documents extended over the periods from 1989 to 2017 in respect of D1 and from 2011 to 2015 in respect of D2. All of the available documents were copies, although a number of reference documents were scanned images of originals and as such relatively good quality reductions. Nevertheless, examination was limited as not all salient features could be determined with certainty. Mr Handy concluded that:
  1. The available copy documents provided strong evidence to support the proposition that D1 did not sign any of the Disputed Agreements. Although he could not exclude the possibility that D1 was responsible, Mr Handy considered this unlikely; and
  1. There was evidence, albeit weak, that D2 did not sign any of the Disputed Agreements. Based on the available copy documents, the support for the proposition that D2 was not responsible was greater than the support for the proposition that D2 was responsible.
C’s submissions
  1. It is submitted on behalf of C that I ought not to attach any weight to the conclusions  expressed by Mr Handy for the following reasons:
  1. Whilst there is no challenge to those conclusions based upon the 6 representative signatures of each of the defendants, the reality is that Mr Handy’s reports are extremely limited. He was given an extremely small sample of signatures, which were all selected because they were consistent with each other and different from the disputed signatures. A feature of this case is that those representative signatures were not “agreed” representative signatures;
  1. The only contemporaneous signature provided to Mr Handy on behalf of D1 is that of a passport signature, which Mr Handy admitted was “not ideal”. It beggars belief that this would be the only signature provided from 2012, when the defendants had access to dozens of signatures from that time including those contained in the conveyancing documents. The only conclusion that can be drawn is that these documents were not provided because they demonstrate a variation in the signature of D1, which the defendants wanted to keep from the handwriting expert. It has to be remembered that the defendants had taken all the files back from RLK in October 2012 – so they knew precisely what documents would come out on disclosure. They did not even show Mr Handy the Sale Agreement until they were satisfied with his conclusion in his first report, and that he was happy to base it on the representatives signatures they had provided;
  1. In cross examination, Mr Handy was shown contemporaneous documents in the trial bundles, which contained undisputed signatures of D1. Those signatures were very different from the carefully selected and miniscule sample of signatures that Mr Handy was given. By way of example:
  1.         in his written evidence, Mr Handy identified as a key differential the length of the cross bar on the “tt”, which was shown in the disputed signatures to extend far beyond the second “t”. In contradistinction to the 6 reference signatures, Mr Handy was taken to contemporaneous undisputed signatures where the length of the cross bar on the “tt” also extended far beyond the second “t”,
  1.         in his written evidence, Mr Handy identified another key differential as the “Jh”, which was shown in the disputed signatures to extend well above the height of the preceding “P” and “S”. Again, in contradistinction to the 6 reference signatures, Mr Handy was taken to contemporaneous undisputed signatures where the “Jh” extended well above the height of the preceding “P” and “S”;
  1. Mr Handy’s conclusions, based on four major differences in the sample signatures to the questioned documents, are inevitably weakened by the fact that D1’s signature can be shown to have significant variations outside the scope of the small batch of sample signatures that he was shown;
  1. Whilst Mr Handy said that he would have to go away before reconsidering his conclusions in the light of the signatures he had been shown, he could not rule out that the reference signatures were selected to be consistent with each other but different from those on the Disputed Agreements; and
  1. Furthermore “strong evidence” is only halfway up the scale, and “weak evidence” is less than halfway up it so the weight of the handwriting expert’s opinion (based on copies and no use of a microscope which he confirmed to the court meant that he was using his eyes, just as the judge could use his own eyes) is one for the court to assess against all of the relevant testimony, and in particular the defendants’ narrative as opposed to that of C. In this case the court obtains little assistance from the handwriting evidence due to the limitations that arise (a) from the fact that the expert had only copy documents and (b) from the self-serving limited selection of signatures provided to him.
Conclusion
  1. For the following reasons, I do not consider that there is any proper basis for rejecting Mr Handy’s evidence:
  1. C does not challenge Mr Handy’s opinions based upon the 6 representative signatures of each of the defendants;
  1. Mr Handy, whom I found to be an impressive and careful witness, said that the reference documents he had been provided with were sufficient to enable him to undertake a proper comparison since “they are very consistent over a fairly long period of time.”;
  1. In his oral evidence, Mr Handy conceded that the contemporaneous signatures he had now been shown might possibly alter his conclusions, although he would first have to study them and reconsider their significance. He could not say without undertaking a proper detailed analysis whether or not they would affect his conclusions. There were other differentials that he had relied upon in coming to those conclusions;
  1. Mr Handy said that he had not very often been questioned in the witness box for the first time to form a view based upon documents seen for the first time about the suitability or otherwise of reference documents;
  1. Paragraph 17 of the case management order dated 17 April 2019 provides that the “time for service of any question addressed to an expert instructed jointly or by another party is not later than 14 days after service of that expert’s report….Any such question shall be answered within 14 days of service.” If Mr Handy was to be questioned by reference to other signature documents then those documents could and should have been put to Mr Handy long before the trial so that he could have undertaken a proper analysis. As Mr Handy said he “cannot just look at them briefly and say “yes” or “no” my conclusion would alter”; and
  1. I agree with the submissions made on behalf of the defendants that the court should not simply assume in C’s favour that Mr Handy’s conclusions would be any different if he had been given the appropriate time in which to consider the other signature documents, particularly when C had every opportunity to put his own expert evidence before the court and/or put written questions to Mr Handy in advance of the trial.
  1. Whilst Mr Handy’s evidence supports a finding of forgery, that evidence is not by and of itself determinative of the issue. Where primary facts are in issue, they are determined by the judge, not by the expert. Mr Handy’s evidence is merely a piece of the evidence that I must weigh in the balance in determining this particular issue.