JUDGE FINDS PROCESS BY WHICH EXPERT REPORT OBTAINED “SO FLAWED, AND THE MATERIAL ON WHICH IT IS BASED SO LIMITED AND CONJECTURAL THAT IT WOULD BE ENTIRELY WRONG FOR ME TO PLACE ANY WEIGHT ON IT WHATSOVER”

In de Renee v Galbraith-Marten [2022] EWFC 118 Mr Justice Mostyn commented on an expert report that one of the parties sought to introduce. The report had been obtained in breach of the rules. It did not comply with the rules relating to expert reports. It carried no weight at all.

“It is basic, if you are going to put forward an expert’s report, that it must be objective. And objectivity requires, where there are lacunae, that clarification is sought from the other party before going into print. This obligation applies just as fully to an application where permission is needed as to one where it is not.”

 WEBINAR ON EXPERT EVIDENCE IN THE COURTS 2022: 14th DECEMBER 2022

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THE CASE

The judge was hearing several applications in the course of a long-running family proceedings. One of the parties, the mother, sought to introduce an expert report into her application.

THE JUDGMENT ON THE EXPERT REPORT

The judge observed that permission was needed to rely on an expert report in this context.  Permission had not been sought. Further the expert had been shown documents that should not have been disclosed without permission of the court. Finally there were many procedural issues with the report which meant that it could not be relied upon.

Expert evidence adduced by the mother

1. 1. The mother bolstered her application by filing, without permission and in direct breach of my directions order, on 22 September 2022 a further 25 page statement which included a forensic report by Sid Harding of SRH Forensics LLP. The mother is a highly seasoned litigant-in-person and I have no doubt was well aware that her tactic of filing a further witness statement in breach of my order exhibiting an expert’s report for which permission had not been obtained, was completely illicit. The mother strongly asserted that she was unaware of the statutory rule. I pointed out that if you Google “expert evidence in children proceedings” the very first thing that appears is a statement of the statutory rule.

1. 1. I make the following observations about this report and its filing:

a) The filing of the report was in breach of section 13(1) of the Children and Families Act 2014 which provides that:

“A person may not without the permission of the court instruct a person to provide expert evidence for use in children proceedings.”

b) Subsection (2) provides that:

“Where in contravention of subsection (1) a person is instructed to provide expert evidence, evidence resulting from the instructions is inadmissible in children proceedings unless the court rules that it is admissible.”

With considerable hesitation I agreed to read the report as I did not want the mother to think that I had shut my eyes to anything that she wished to adduce. However, I place no weight on the contents of the report not only because of its filing in blatant breach of the law, but also because of the following matters.

c) The report does not comply with the obligation of the author to be impartial (Vernon v Bosley (No 1) [1996] EWCA Civ 1310). Nor does it make the necessary declarations confirming that the expert has complied with his/her duties. FPR 25.14(2) provides that:

“at the end of an experts report there must be a statement that the expert understands and has complied with the expert’s duty to the court”.

No such statement was appended to Mr Harding’s report.

d) Mr Harding appears to have been shown documents which had been disclosed in earlier proceedings by the husband to the wife, without the court’s permission. Such disclosure would be a contempt of court by both the discloser and the recipient of the documents.

e) Mr Harding put forward his opinions based on the most flimsy of materials, without seeking the husband’s contribution or clarifications. This failure to seek any clarifications from the husband is egregious, and flies in the face of the most elementary rule governing an expert. It is basic, if you are going to put forward an expert’s report, that it must be objective. And objectivity requires, where there are lacunae, that clarification is sought from the other party before going into print. This obligation applies just as fully to an application where permission is needed as to one where it is not.

f) In the absence of up-to-date and reliable evidence from the husband, Mr Harding’s conclusions are largely conjectural. His was a highly partial exercise.

g) I am surprised that Mr Harding, holding himself out as a partner in a firm that focuses on forensic accounting, should be apparently entirely oblivious of the legal obligations that attach to people who hold themselves out as experts in court proceedings. It is not as if proceedings under Schedule 1 are some remote and obscure outlier. They are definitely mainstream and I find it very difficult to accept that Mr Harding was unaware that the permission of the court was needed to instruct him in such proceedings.

1. My conclusion is that the process by which this report was produced was so flawed, and the material on which it is based so limited and conjectural, that it would be entirely wrong for me to place any weight on it whatsoever.