AN EXPERT WHO TENDED TOWARDS BEING AN ADVOCATE: YOU SAID SOMETHING DIFFERENT IN ANOTHER CASE: THE NEED FOR A MEASURED RESPONSE

It may be indicative that there are such a large number of cases where judges have criticised experts for veering towards advocacy that I sometimes hesitate as to whether they merit writing about. However such a tendency was noted by Mr Justice Freedman in Bitar v Bank of Beirut SAL [2022] EWHC 2163 (QB). This case is also interesting because the judge looked at the evidence that the expert had given in other cases.  This is a developing trend and parties may well be best advised to look at other cases an expert has appeared in when considering instructing a particular expert.

“As an expert, it behoved him to give measured responses and expressly take into account contrary views.”

THE CASE

The claimant brought an action which required evidence from expert as to Lebanese Law.  Each side called an expert on Lebanese law.  The judge considered the evidence given by the Defendant’s expert.

THE JUDGMENT ON THIS ISSUE

1. 1. Although a practitioner and not an academic, he qualified at the Saint Joseph University in Beirut and then obtained LLM and PhD degrees in the University of London. His practice includes litigation, arbitration, contract law and banking law. He refers to 850 lawsuits covering banking and financial activities. He has acted as an expert in foreign courts. He was the expert for the banks in the recent cases of Khalifeh and Manoukian referred to above. In Khalifeh, he was appraised by Foxton J as [122] “the more persuasive expert when arguing at a level of principle rather than simply by reference to what cases have decided.” In Manoukian, he received a less complimentary assessment from Picken J. In a number of respects, he referred to aspects of his evidence as ‘unconvincing’ [85], ‘extreme’ [92], not realistic [103] and ‘difficult to follow’ [115]. The favourable and unfavourable treatment of his evidence by other judges is not the point: what is in point is how I deal with his evidence and how he came over to the Court.

1. 1. Although qualified to give expert evidence about Lebanese banking law, there were times when I was concerned about his tending towards being an advocate which impaired the independence of his evidence. He had particular difficulties in dealing with matters in point to the issues in the instant case which had been considered in Manoukian in a way contrary to the bank’s case in Manoukian and contrary to the case of the Bank in the instant case. Despite this, Dr Moghaizel sometimes took different positions from his position in Manoukian or from the position as found by Picken J.

1. 1. Dr Moghaizel could have confronted the point up front. He could have pointed out the nature of the difficulty, and in a measured way explained why he was now taking a different position. Instead of doing this, the inconsistencies had to be extracted from him in cross-examination. As he rejected what was being put to him, from time to time seeking to argue the case in an unconvincing and unrealistic way, there were real questions about his objectivity or reliability bearing in mind that he had so recently been grappling with these issues. As an expert, it behoved him to give measured responses and expressly take into account contrary views. In the event, he had a tendency to veer towards the approach of an advocate by arguing for the different position rather than assisting the court as to how and why it could prefer that position.

1. A particular example which is more germane to the nature of the evidence of Dr Moghaizel than to the issues in the case concerned Article 26 of the Consumer Protection Law (“CPL”). Dr Moghaizel relied on writings of Nammour of 2006 for a proposition that the CPL did not apply to bank contracts with consumers. He did not refer to the same author’s writings in 2007 which corrected the relevant sentence. This mistake would have been easy to understand, but for the fact that this issue had arisen in the evidence in the Manoukian case. This omission showed a lack of attention to detail in respect of a matter which would have been expected to have been within the immediate recall of Dr Moghaizel. I shall refer to other instances of concern about Dr Moghaizel’s evidence later in this judgment. For the main part, I found the evidence of Professor Najm more helpful, measured and ultimately more informative than the evidence of Dr Moghaizel.”