CLAIMANTS NOT GIVEN PERMISSION TO RELY ON EXPERT EVIDENCE: THE EVIDENCE WOULD NOT ASSIST THE COURT IN ITS TASK (WITH A FEW OTHER REASONS)

In Wambura & Ors v Barrick TZ Ltd & Anor [2023] EWHC 2582 (KB) Master Stevens rejected the claimants’ application to call an expert.  The judge contains a detailed consideration of the law and authorities relating to the court’s discretion to permit expert evidence to be adduced.

“CPR Part 35 governs the use of expert witness evidence in civil proceedings. It is useful to remind myself that expert opinion evidence is an exception to the general rule that only evidence of fact may be adduced to the court. It therefore follows quite naturally that the court should not be shy about limiting the occasions when such evidence can be adduced”

THE CASE

The 14 claimants bring an action for damages said to be caused by the Tanzanian police engaged by the defendants for security operations at a mine in Tanzania.  Their case is that the police were deployed and directed in their activities by the defendants.  There are also allegations that the private security firm were directly involved in some cases.

THE APPLICATION TO ADDUCE EXPERT EVIDENCE

The claimants applied for permission to adduce evidence from an expert on security issues. They had identified a specific expert and set out the issues on which it was said the expert could assist the court.

1. 1. In early May 2023, shortly before the next CMC, the parties corresponded further on the issue, and on 11^th May 2023 the claimants indicated in a letter that they proposed an expert “specifically experienced in issues of the use of firearms and the use of force“. They noted that the defendants had denied “unreasonable and excessive force was used by the police in the relevant incidents” and their denial that “the defendants were aware of a likelihood that the police would use unreasonable and excessive force against trespassers“. The claimants expressed a belief that the court would benefit from expert evidence on those contested issues and indicated that they had identified Gary White MBE as the appropriate expert. They supplied his CV and introduced him as a “law enforcement expert with extensive operational and senior command experience in policing violent disorder“. They explained that he had “advised and trained national police forces across the world, including in a number of African countries, on public order policing, human rights and the use of force… He has particular experience in these issues in the context of extractive industries… Mr. White has contributed to or authored authoritative publications on human rights and the use of force, including Amnesty International’s International Guidelines on the UN Basic Principles on Police Use of Force and Firearms”.

1. 1. The claimants’ letter identified that the “expert will plainly assist the court in determining whether Tanzanian police used excessive force in breach of international standards and whether any measures adopted by the defendants to mitigate the risk of police using excessive force were adequate when assessed against international standards and comparators”. As to any reliable body of knowledge or experience on human rights and use of force, they cited the UN Basic Principles of Police Use of Force and Firearms by Law Enforcement Officers and the Voluntary Principles on Security and Human Rights. They also referenced the UN Guiding Principles on Business and Human Rights.

1. 1. In their letter the claimants specifically identified 3 issues which the expert evidence should address:

i) use of force by the Tanzanian police force generally;

ii) use of such force during the relevant time at the mine, and in the specific circumstances of each of the cases; and

iii) the measures taken by defendants to mitigate the risks of excessive use of force by the police.

The defendants responded the next day stating that the first issue identified was not one which fell to be decided in the case, and other matters raised were to be determined on the basis of factual evidence. They maintained that no proper justification was given as to why the court could not assess the security matters for itself, and noted that the claimants had provided no reasons to distinguish this case from 2 earlier High Court cases where they said similar issues had been considered(I will return to these when summarising the defendants’ submissions on this particular application below at [33-42]).

THE LEGAL TEST AND AUTHORITIES

Master Stevens considered the relevant test.

1. 1. CPR Part 35 governs the use of expert witness evidence in civil proceedings. It is useful to remind myself that expert opinion evidence is an exception to the general rule that only evidence of fact may be adduced to the court. It therefore follows quite naturally that the court should not be shy about limiting the occasions when such evidence can be adduced. Indeed, the court has to be satisfied in 2 regards, pursuant to CPR Part 35 before granting permission, namely:

i) whether such evidence is admissible; and

ii) whether it is “reasonably required to resolve the proceedings”.

The court must make its decision in accordance with the overriding objective.

AUTHORITIES

1. 1. By way of introduction, the test of admissibility has been usefully summarised by Hildyard J in Re RBS (Rights Issue Litigation) [2015] EWHC 3433 (Ch) at [14] as, “… whether there is a recognised body of expertise governed by recognised standards and rules of conduct relevant to the question which the Court has to decide“. He continued, “Unless there is, the court should decline to admit evidence which ex hypothesi is not evidence of any body of expertise but rather the subjective opinion of the intended witness.”

1. 1. Mostyn J has also provided helpful guidance in GM v Carmarthenshire CC [2018] EWFC 36 at [14] when he said that the evidence should be “of such a nature that a person without instruction or experience in the area of knowledge or human experience would not be able to form a sound judgment on the matter without the assistance of a witness possessing special knowledge or experience in the area.”

1. 1. The claimants relied upon guidance from the Supreme Court in Kennedy v Cordia (Services) LLP [2016] 1 WLR 597 (“Kennedy“) concerning admissibility as follows:

i) whether the proposed evidence will assist the court in its task;

ii) whether the witness has the necessary knowledge and experience;

iii) whether the witness is impartial in his or her presentation and assessment of the evidence; and

iv) whether there is a reliable body of knowledge or experience to underpin the expert’s evidence.

1. 1. As to what evidence is reasonably required, a 3-stage test to help assess whether to permit expert evidence was usefully designed by Warren J in British Airways PLC v Spencer [2015] EWHC 2477 (Ch) (“BA v Spencer“). The test is not one of absolute necessity, but where the evidence may be of assistance to the court a balance has to be struck between its relevance and the proportionality of admitting it, in order to decide whether it is reasonably required. The test is:

i) is expert evidence necessary to decide an issue, rather than merely helpful? If yes, it should be allowed;

ii) if it is not necessary, will it assist the judge in determining an issue? If it would assist but is not necessary then the court should consider,

iii) if expert evidence on that issue was reasonably required to determine the proceedings.

1. In answering the third question, consideration needs to be given to the value of the claim and proportionality, the effect of a judgment either way on the parties, the cost of the evidence and who will pay for it, whether any delay will be caused, or a trial date lost.

APPLYING THE TEST TO THE CURRENT CASE

The claimants’ application failed at the first test as to whether it would assist the court. Failing on one of the tests means that permission would not be granted. However there is a detailed consideration of the additional arguments raised.

ANALYSIS AND CONCLUSIONS

1. 1. On the first occasion of security expert evidence being raised in a substantive way at the 17 May 2023 CMC, I had sounded a general note of caution about a lack of focus in some terms of reference for expert evidence which can result in a waste of both time and money. As Aikens J held in JP Morgan Chase Bank v Springwell Navigation Corp [2006] EWHC 2755 (Comm) at [23], “There is a tendency to think that a judge will be assisted by expert evidence in any area of fact that appears to be outside the “normal” experience of a [Commercial Court] judge“. But that is no reason to include permission for such evidence as “all too often, the judge is submerged in expert reports which are long, complicated and which stray far outside the particular issue that may be relevant to the case“. As set out at [10] above, I therefore asked the parties to go away and come up with potential terms of reference for my consideration, as well as some more focused submissions about the type of expertise that could be proffered to the court. Additionally, I had acknowledged that in the modern world risk management is becoming a recognised area of expertise in certain sectors and settings; that comment was directed to operational expertise but not to expert evidence necessarily in a court setting. At that time, whilst very familiar with the leading and uncontested authorities on the requirements to be satisfied before permission is given for expert evidence generally, I had not seen the authorities relied upon now by the defendants in respect of security issues at both this African mine and 2 others.

Admissibility

(i) Evidence assisting the trial judge

1. 1. Adopting the structure of the Kennedy test, on whether the claimants’ proposed evidence will assist the court in its task, I need first to reflect on precisely what that task will be as it has been variously represented to me. I have to say that I share the defendants’ disquiet as to how the task has been subject to changes in packaging and labelling since the spring of this year. Proposed terms of reference have persistently been far too wide and unfiltered for the issues at hand (see, for example [7 at (i)] and [18 at 1)]. It appears that the constant and more focussed theme throughout submissions has been on assisting the trial judge in reaching findings on whether or not there was an excessive use of force having regard to international standards of appropriate behaviour^[1]. That context has also included, on occasion, and most recently, the situation of use of force against trespassers and the implications of integration of the police into the defendants’ security arrangements. The “risk management” aspect of the requested expertise has been emphasised in the more recent submissions as a distinguishing feature from earlier cases. However, to my mind, any judicial consideration of how well prepared the defendants were to try and maintain peaceful law and order, and their planned actions to minimise acts of violence, will all be interwoven with consideration of the same factual matrix used to determine whether there has been an excessive use of force in any particular circumstance of alleged violence; one simply cannot hive off “risk management” as a separate process or area of expertise. I accept the defendants’ submissions that this analysis is precisely the task that trial judges have undertaken without apparent difficulty, or the assistance of expert evidence, in the authorities placed before me. In Kesabo, at [9], where permission for expert evidence directed towards what could be done to minimise and/or control situations of violence leading to injury at the North Mara mine, Andrews J found that whilst it was likely that the defendants would call witnesses to explain systems in place and what they considered “was a proportionate response to the problems as they saw them developing…. Whether or not the behaviour of the defendants was reasonable or otherwise is going to be a matter for the judge who hears this case to determine on the basis of the evidence before him or her“.

1. 1. Another aspect of the trial judge’s task in this case will include consideration of relevant international standards governing use of force. Again, I reject the claimants’ submission that those standards are so technical that the trial judge will need expert assistance to interpret them. I have reviewed the ISO standards within the hearing bundle, and they are very generalised and written in plain non-technical language. The VP have already been considered by the court in Vilca, where a request for expert evidence from one of the “principal architects” of the VP was denied at [25] as they did not “appear to be ambiguous in any material fashion. This means that the trial judge ought to be able to measure what was done or not done… without the need for expert assistance“. Similarly, on the appeal in Kalma, at [129] there was no criticism from the Court of Appeal of the trial judge’s analysis and application of the VP, without any reliance upon expert evidence, and Coulson LJ [at 150] noted that the VP were general in nature.

1. 1. I am aware that the claimants were contending that it was the level of risk posed by the situation whereby police operated as part of the defendants’ security team, which was also material to their argument that expert evidence was required. I do not believe this takes matters any further forward as in Kesabo the judge was considering whether to permit expert evidence from a former police officer in a situation where private security forces and/or the police had been involved in situations of alleged unlawful and/or excessive use of force. She declined permission. Similarly in Kalma, the mining companies relied on the police force to provide security support and the police were involved in various violent incidents that occurred, but there was no suggestion of any difficulty in the trial judge reaching a determination of the issues without expert assistance. I do not believe the reference to “trespassers” in the most recent iteration of the terms of reference alters my view; not all of the claimants are alleged to have been involved in trespassing at the time of the incidents complained of and the Kesabo case related specifically to the mine at North Mara and included injuries/deaths caused during trespassing activity.

1. 1. Case law makes it plain that having failed to satisfy even just one of the Kennedy criteria, the application for permission must fail. Nonetheless, I will consider the other criteria as they were the subject of extensive submissions.

(ii) Necessary knowledge and experience

1. 1. I find force in the defendants’ submissions, that despite the claimants’ emphasis upon Mr van der Walt’s understanding and experience of the geopolitical environment where the North Mara mine is situated, this is not satisfactorily evidenced. Africa is a vast continent with numerous regional and sub-regional variations, and stark cultural differences between different groups of people as to their values, customs and behaviours. Within the hearing bundle, there was an independent report (not referenced in submissions) describing distinctive features of attitudes towards conflict and territorial rights possessed by the local village inhabitants in the area surrounding the North Mara mine. Even if that report is not entirely accurate, the overarching point remains, that it is a huge oversimplification to assert that an acquaintance with, or indeed experience of security management for the “extractive sector” in Africa meets the court’s test of necessary knowledge and experience to assist with this specific dispute, in a remote and culturally distinct area where artisanal mining has been prevalent for many years. I find the defendants’ submission even more compelling because the proposed expert was given the time and opportunity to tailor his CV in order to demonstrate his expertise more fully to assist me in making this determination now. The version of the CV before me is therefore a considered version.

1. 1. The defendants also cast doubt upon the proposed expert’s skills and experience in giving evidence as this would be his first time appearing as an expert witness. I have noted that they criticised him for the terms of reference which he had approved as far too wide and general in nature, but I take account of the fact that they had also been approved by the claimants’ legal team, not solely the intended expert. The expert has given every indication that he would wish to work within any boundaries set by the court. Every proficient expert witness has had to start working on a first instruction, and I wish to be clear that the process of initiation, of itself, is not a sound reason to say he lacks the necessary expertise; Mr van der Walt has indicated he would participate in relevant training to get up to speed, if appointed.

(iii) Impartiality

1. 1. I consider that the defendants’ criticisms in this regard were rather harsh, and I do not attach weight to them. As mentioned above the expert has quite plainly indicated that this is the first time he has been involved as a potential expert witness at court, so the drafting of his CV was unlikely to be as finessed as that of an experienced witness. I accept that in describing “police brutality” he may well have simply been referring to the numerous human rights reports that have been produced in the past raising concerns about security at the North Mara mine. This is no reason to decline his proffered experience as an expert.

(iv) Reliable body of knowledge

1. 1. I have already addressed some of the points raised in respect of this aspect of the test at [45] above, in that the relevant materials appear to be very generalist in nature, such that the trial judge will be able to reach a sound judgment without special help from an expert (as per Mostyn J at [14] above).

1. 1. I do not accept the separate criticism of the proposed expert by the defendants, that he has not revealed any relevant membership of a professional body. In Vilca [at 16], Foskett J quoting from a decision of Oliver J in Midland Bank Trust Company Ltd and Anor v Hett Stubbs and Kemp [1979] 1 Ch. 384, found favour with that earlier decision that expert evidence is not confined to that emanating from rules and practices of “professional institutes”, but relates to accepted standards of conduct sanctioned by common usage. However, the problem in this case is that whilst there are operational groups of consultants that assist with security functions in mines, such as the Assaye Risk and Focus Africa, there is no overarching published set of detailed standards, or agreed range of acceptable conduct by a security function, or at least none presented to me; what is considered acceptable appears to be all fact specific against very broad generalist guidance, such that it is well within the remit of an experienced trial judge to determine the issues unaided. Thus the situation resembles the one exemplified by the comment of Hildyard J already referenced at [13], that the assistance would only be “the subjective opinion of the intended witness” which is not admissible evidence at all.

1. 1. Overall, I do not believe that the Kennedy test is satisfied in respect of admissibility of the proposed evidence under limbs (i), (ii) and (iv). That is sufficient to dispose of this application. However, for the sake of completeness, I will now turn briefly to look at the separate test as to what is “reasonably required”, although there is a significant degree of overlap with what has been set out already.

Is evidence reasonably required?

(i) Is the evidence necessary?

1. 1. I do not feel the need to reference again the various authorities where other courts have held that the type of expert evidence envisaged in this case was not necessary. It is notable that there were no authorities in the bundle where permission had been given for an expert in risk assessment, risk management and risk mitigation regarding alleged excessive use of force by security personnel whether engaged in and around a mine, or elsewhere.

(ii) Would the evidence be helpful?

1. 1. Whilst I acknowledge the claimants’ concerns that the defendants are likely to call witnesses who have worked in the security function at the mine, and who have detailed knowledge of the processes that individual claimants will not have, I do not believe the way to assist the court is to permit expert evidence to try to complete the evidential matrix upon which the trial judge will make their decisions, when the nature of that expert evidence would be subjective opinion.

1. 1. As Foskett J held in Vilca at [26] a proposed expert may well have relevant factual evidence to give, even though their evidence does not satisfy the tests for appropriate expert opinion. Similarly, Andrew J in Kesabo left open the possibility that the intended expert might give evidence of fact in the case (at [15]).

(iii) Is the evidence reasonably required in all the circumstances?

1. This limb of the test is dependent upon me having found that the proposed expert evidence could be helpful, which I have not. Accordingly, I dismiss the application.