EXPERT WATCH 64: LOOKING AT THE CONSEQUENCES OF AN EXPERT REPORTING BADLY

August 6, 2026 · by · in Uncategorized

Here we are looking at the consequences of an expert reporting badly. So badly that the parties agreed that a judgment based on the expert’s report must be set aside.    The judge held, however, that earlier orders that prevented the appellant from disputing expert evidence would not be set aside, albeit some questions may be allowed.

“… it might be said that the case for the Unless Order is just as strong now as it was when ICC Judge Barber was giving her judgment. The disaster has been averted. Mr Ashing and the ICAEW have spoken up and the deficiencies in the Ashing report are known. An expert at any second trial will owe duties to the court under CPR 35 and is in a better position to avoid a repeat of Mr Ashing’s errors. The risks to Mr Lorimer-Wing of being stuck with a report that is wrong and that he cannot challenge are therefore lower than they were at the time of the Unless Order”

 

KEY PRACTICE POINTS

This remains a remarkable case so far as the expert’s total change of heart is concerned. However that change did not mean that orders debarring the appellant from challenging the evidence would automatically be set aside.  [It would be interested to see whether there is any claim against the expert for any costs incurred in this appeal and the rehearing – experts generally should be award that this is a possibility – if not a probability]

THE CASE

Lorimer-Wing v Hashmi [2026] EWHC 1843 (Ch) (18 June 2026) Mr Justice Richards.

THE FACTS

The proceedings arose from an unfair prejudice petition under section 994 of the Companies Act 2006. Liability had already been determined and the only remaining issue was the value of the respondent’s shares. Expert valuation evidence was permitted and the respondent relied upon a report prepared by a chartered accountant. Following an unless order debarring the appellant from further participation because of unpaid costs orders, the expert’s evidence was effectively unchallenged at trial. The judge adopted the expert’s valuation almost exactly, fixing the value of the shares at approximately £3.318 million.

Three months after judgment, the respondent’s own expert wrote directly to the High Court. He explained that, because of health problems, his report contained significant errors, including a failure properly to account for the company’s indebtedness. His revised opinion was that the shares were worth substantially less than the figure adopted by the court.

The following day the Institute of Chartered Accountants in England and Wales wrote to the court stating that it had obtained an independent valuation from another expert who was firmly of the view that the company had no value at the relevant date.   The issues were considered in detail in an earlier post in this series. 

The defendant applied to set aside the valuation judgment and also set aside unless orders made in the litigation which prevented him from challenging the expert evidence at the original trial.

WHAT HAPPENED IN A NUTSHELL

The appeal against the quantum decision was unopposed.  The appeal against the unless orders were made were not allowed.

AN OVERVIEW OF THE JUDGE’S REASONS

The judge held that the correctness of the unless order had to be judged on the information available when it was made. The later discovery that the expert evidence was fundamentally flawed did not retrospectively render the order wrong. The judge accepted that the consequences had almost produced a serious injustice, but concluded that this could be addressed through appropriate case management at the rehearing rather than by setting aside the unless order itself.

THE JUDGMENT ON THE PEREMPTORY ORDER

Ground 1

  1. The Unless Order has the sanction of debarment built into it. If, as turned out, the costs were not paid, the sanction of debarment followed automatically. The Unless Order Appeal is not an application for relief from sanctions (which would need to be made in the ICC rather than on appeal to this court). Nor is it an appeal that seeks to argue that, in all the circumstances, ICC Judge Barber should not have exercised discretion to impose the sanction of debarment. Once the Unless Order was imposed, there was no separate discretion to be exercised on sanction since the Unless Order specified a single sanction that became operative as soon as it was not complied with. The Unless Order Appeal seeks to set aside the Unless Order in its entirety and so achieve the result that no sanction is imposed for Mr Lorimer-Wing’s failure to pay costs.
  2. Moreover, now that it is common ground that the Quantum Appeal must be allowed and the matter remitted back to the ICC, it would have been open to Mr Lorimer-Wing to make an application in remitted proceedings before the ICC to the effect that, given the change of circumstances arising now that it is known that Mr Ashing’s report was unsatisfactory, he should be allowed some rights of participation in the future despite the Unless Order. He could also have invited this court, when setting the terms of remittal of the Quantum Appeal to the ICC, to make case-management directions that give him greater rights of participation in those remitted proceedings, despite the Unless Order. The Unless Order Appeal involves Mr Lorimer-Wing taking a different approach from those: he is asking the High Court to allow an appeal against the Unless Order so that the Unless Order is set aside altogether and he therefore suffers no sanction at all for failure to pay the costs orders.
  3. I heard submissions both from Mr Eaton Turner (to whom I express my gratitude for helping Mr Lorimer-Wing on a pro bono basis) and from Mr Lorimer-Wing himself. They put the case somewhat differently.

The case on Ground 1 as advanced by Mr Eaton Turner

  1. In his oral submissions on behalf of Mr Lorimer-Wing, Mr Eaton Turner accepted that he had to overcome the familiar high bar necessary to challenge ICC Judge Barber’s case-management decision to make the Unless Order in the first place.
  2. Mr Eaton Turner submitted that ICC Judge Barber had ignored a relevant consideration. She did not consider how serious it would be if a debarring order was made that meant that expert evidence, which the court had no real choice but to accept, was tendered without any effective challenge or contradiction. Mr Eaton Turner suggested that expert evidence is more sensitive in this regard than factual evidence and ICC Judge Barber did not turn her mind to the seriousness of the consequences that might follow if the sanction in the Unless Order was triggered. He pointed me to the transcript of the hearing before ICC Judge Barber and suggested that when Mr Lorimer-Wing sought to raise this point, it was peremptorily and robustly dismissed when it should have been taken more seriously.
  3. The first difficulty is that this is not a ground of appeal that Mr Lorimer-Wing has advanced. Mr Lorimer-Wing’s focus in his grounds of appeal was on why the court should set aside the Unless Order given what is now known. He was not arguing that it was wrong when made because it ignored a relevant consideration.
  4. Even putting that point to one side, the second objection is that ICC Judge Barber clearly did have in mind the serious consequences that would follow, in relation to expert evidence, if the Unless Order was made and the sanction triggered. She referred at [5] of her judgment to the fact that there was permission to rely on expert valuation evidence at the quantum trial. She gave herself a careful direction at [13] to [15] that included a reference to Mr Lorimer-Wing’s rights under Article 6 of the European Convention on Human Rights (Article 6) precisely because any triggering of the sanction in the Unless Order would significantly and adversely affect Mr Lorimer-Wing’s ability to put his case.
  5. In any event, I do not accept the premise of Mr Eaton Turner’s submission as I consider the risk posed by an inability to advance expert evidence is actually lower than the risk posed if factual evidence cannot be put forward. If there was a dispute on, for example, a matter like what happened on a particular telephone call, the court would find it difficult to disbelieve plausible evidence of Mr Hashmi’s witness if that evidence could not be challenged. However, experts owe duties to the court under CPR 35. At the time ICC Judge Barber made the Unless Order, there was no reason to believe that Mr Ashing would fail in his duties. Therefore, even if the sanction in the Unless Order were triggered, ICC Judge Barber could realistically expect that the court would benefit from dispassionate expert evidence on the true value of Mr Hashmi’s shares even if that evidence could not be challenged. Even if it were a permissible ground of appeal, I am not prepared to accept that the error that Mr Eaton Turner alleges is present.
  6. Mr Eaton Turner also submitted, in an argument that was closer to Mr Lorimer-Wing’s grounds of appeal, that the court would not now make the Unless Order given what it now knows about Mr Ashing’s report. Therefore, he submitted that the Unless Order was wrongly made on the basis that, given what we know now, it would never have been made.
  7. That might be a point that could be made before the ICC in remitted proceedings on quantum in support of a relaxation or variation of the sanction imposed by the Unless Order. It might also raise an issue of relevance when I fix the terms of remittal of the quantum issue back to the ICC. However, I do not accept that this submission sets out the correct test for an appeal against the Unless Order. The test, on an appeal against exercise of a discretion is not whether with full knowledge of future events the court would have made the same order. If that were the test, lots of exercises of judicial discretion would be vulnerable if events turned out differently from what was expected.
  8. I do not, therefore, accept the submissions that Mr Eaton Turner advanced in support of Ground 1.

Mr Lorimer-Wing’s submissions in support of Ground 1

  1. Mr Lorimer-Wing put matters slightly differently. He said that the Unless Order is the means by which he was debarred and that injustice would ensue if it continued in its current form as current events have shown the unreliability of Mr Ashing’s report and the ICAEW now suggests that Mr Hashmi’s shares were worth nothing at the relevant time.
  2. Mr Lorimer-Wing derived some support from some statements of Leech J when giving permission to appeal. At [9(2)] to [9(4)] of his oral judgment, Leech J included among his reasons for concluding that the Unless Order Appeal had a real prospect of success and that new evidence should be admitted:

(2) [ICC Judge Barber] did not know that once the Appellant was debarred from defending, the Respondent would file and rely on an expert witness who had relied on fund raising forecasts which were arguably false, or that he was unfit to give evidence or unable to produce a report which was safe and reliable. In those circumstances, the Appeal Court would be entitled to exercise its discretion afresh.

(3) The Appellant has a real prospect of persuading an Appeal Court that it would be a denial of his Article 6 rights if the order continued to prevent him from challenging the judgement and the order of Deputy ICC Judge Agnello KC dated 4 March 2025 if, indeed, it was procured by fraud and that the appeal should be granted and the order set aside.

(4) The Court will have to weigh up the Appellant’s own conduct in deciding whether to allow the Appeal. The judge was strongly influenced by a transfer of £18,000 by the appellant to his wife shortly before the time for payment in the Order. However, it is unnecessary for me to consider either of the issues which I considered in refusing permission to appeal on paper or, indeed, the additional evidence which the appellant has put in today. It is unnecessary for me to consider that evidence or those issues because I am not satisfied that the appellant’s conduct ought to prevent him from successfully prosecuting his appeal on the basis of the new evidence, even if the judge was right to characterise it the way she did.

  1. Leech J was mistaken to the extent he was suggesting at [9(2)] that Mr Ashing filed his report after Mr Lorimer-Wing was debarred. Mr Ashing had in fact served his report well before that. However, even putting that point to one side, Mr Lorimer-Wing is over-reading Leech J’s statements. First, Leech J was concerned only with whether the proposed appeal got over the relatively low hurdle applicable to applications for permission to appeal.
  2. Moreover, at the time Leech J gave permission to appeal, Mr Lorimer-Wing’s only challenge advanced to the Quantum Order was the ICC Set Aside application referred to in paragraph ?14 above. Leech J’s points above were therefore directed at whether the Unless Order should, could or should prevent Mr Lorimer-Wing from pursuing that application. I can quite see how, if the Unless Order meant that Mr Lorimer-Wing simply had no means of challenging the Quantum Order, even though it is based on a flawed report, that would be a remarkable outcome. However, the Unless Order has not prevented the challenge to the Quantum Order. Indeed such a challenge is currently before the court, and both parties agree that Quantum Appeal should be allowed and the Quantum Order should be set aside, even if they do not agree on the terms on which that should happen. Therefore, far from Mr Lorimer-Wing being prevented from challenging the Quantum Order, that challenge is going to be successful.
  3. Mr Lorimer-Wing also suggested that some of the cost orders which form the basis of the Unless Order might be shown to be wrong because of Mr Ashing’s later defective work. He asked me to stay those cost orders in exercise of my judicial discretion. Mr Lorimer-Wing says that Mr Hashmi is riding two horses. On one hand, he defends Mr Ashing when it comes to defending the cost orders, but disavows his work for the purposes of the Quantum Appeal. That prompted some submissions on behalf of Mr Hashmi to the effect that Mr Lorimer-Wing has a tendency to blame others for his own mistakes.
  4. I do not need to make any findings as to the personal conduct of Mr Lorimer-Wing or Mr Hashmi to decide this issue and I will not do so. It is quite clear that I should not exercise any discretion I have to stay the costs orders whose non-payment led to the Unless Order for the following reasons: i) As to ICC Judge Burton’s £16,800 costs order referred to in paragraph 7.i), there has been no appeal against that. Mr Lorimer-Wing says that Mr Ashing should not have needed the bank statements that were the subject of the disclosure application and could have obtained the information he needed from financial statements. However, I am not prepared to conclude that assertion meant that bank statements were obviously unnecessary. It seems to me entirely possible that Mr Lorimer-Wing was unjustifiably digging in on disclosure matters and that the costs award followed as a consequence of that.ii) Leech J’s £10,000 costs order referred to in paragraph ?7.ii) seems to me to flow from a misconceived application in the interim applications list. I do not think the effect of that cost order is undone by Mr Ashing’s later defective expert report.

iii) Nor do I accept that Edwin Johnson J’s costs order is somehow tainted by Mr Ashing’s later work. That costs order was made following Mr Lorimer-Wing’s failed appeal and failed application for permission to appeal, following the liability trial in which Mr Ashing had no involvement.

  1. Even if I did think that there was a problem with the costs orders, which I do not, it is not clear to me that I could stay them as they simply have not been challenged. Therefore, even if I did have power to stay those costs orders, I would not do so.
  2. Of more apparent force is the argument given that what is now known about the Ashing report, the Unless Order could operate disproportionately. Mr Lorimer-Wing in effect says he suffered a near miss. If Mr Ashing and the ICAEW had not spoken up, he would have been stuck with the consequences of a defective piece of work from Mr Ashing and would have to pay a price for Mr Hashmi’s shares that is excessive. He says that the court should allow the Unless Order Appeal to prevent any possibility of a repeat occurrence.
  3. I do not think Mr Hashmi’s first answer to this, that even if ICC Judge Barber did not know that Mr Ashing’s report was defective, she knew from exchanges with Mr Lorimer-Wing that he considered it fraudulent and wrong, addresses this point. There is a substantial difference between a litigation opponent, challenging a report, suggesting it is bad, and the expert himself, backed up by the ICAEW, saying that it is deficient.
  4. However, there is much more force in Mr Hashmi’s second answer. Mr Lorimer-Wing is not challenging ICC Judge Barber’s conclusion that he had put forward an insufficiently full account of his finances. While he has asserted, but I have not accepted, that the costs awards underpinning the Unless Order may be unsound, he has not seriously disputed ICC Judge Barber’s finding that he “adopted a pattern of irresponsible, unreasonable and disproportionate stances in this litigation, which have inevitably run up considerable costs”. (In his oral submissions, Mr Lorimer-Wing did seek to open up the question of his finances. However, since his grounds of appeal do not seek to challenge ICC Judge Barber’s factual conclusions on that issue, I indicated that I would not hear oral submissions on that issue and Mr Lorimer-Wing made no application to amend his grounds of appeal.)
  5. I do not consider, therefore, that looking at the circumstances known to ICC Judge Barber at the time, her order was wrong. She expressly directed herself on the correct legal test and applied it in a reasonable and rational way. A necessary consequence of the Unless Order was that Mr Lorimer-Wing could not challenge Mr Ashing’s expert report if he failed to pay the costs orders. It was precisely because the order had such draconian consequences that ICC Judge Barber considered carefully, in the light of the authorities, whether it should be made at all.
  6. There is a superficial attraction to Mr Lorimer-Wing’s argument that, a disaster having been averted, this court should reverse the Unless Order so that there is no danger of that disaster happening again at any remitted hearing. However, in my judgment, that attraction is superficial only. ICC Judge Barber found that Mr Lorimer-Wing had conducted interlocutory proceedings unreasonably and disproportionately. He had not shown an inability to pay the resulting costs orders whether from his own resources, by borrowing against his family home or asking for help from friends and family. Ultimately, whether Mr Ashing did a good piece of work or a poor piece of work, the nature of the risk to Mr Lorimer-Wing posed by the Unless Order was the same. If he did not pay the costs orders, a court might accept Mr Ashing’s conclusions, even though Mr Lorimer-Wing could not challenge them. That consequence has nearly eventuated.
  7. However, even if though the consequence eventuated, that does not make the Unless Order wrong. If Mr Ashing and the ICAEW had not spoken up and Leech J had refused permission to appeal at the oral hearing, the Unless Order would not become wrong if Mr Ashing or the ICAEW spoke up subsequently. It would just mean that the sanction implicit in the Unless Order would have operated particularly harshly, in the light of what is now known after that order was made.
  8. Moreover, setting aside the Unless Order is not the only way of the court learning from the past now that all parties agree that the Quantum Order should be set aside. All parties agree that this court has power to make case management directions that govern any remitted hearing in the ICC dealing with quantum. Mr Lorimer-Wing’s appeal against the Unless Order sets up a false binary choice between him having no rights of participation at all in any proceedings remitted to the ICC and full rights of participation.
  9. Indeed, it might be said that the case for the Unless Order is just as strong now as it was when ICC Judge Barber was giving her judgment. The disaster has been averted. Mr Ashing and the ICAEW have spoken up and the deficiencies in the Ashing report are known. An expert at any second trial will owe duties to the court under CPR 35 and is in a better position to avoid a repeat of Mr Ashing’s errors. The risks to Mr Lorimer-Wing of being stuck with a report that is wrong and that he cannot challenge are therefore lower than they were at the time of the Unless Order. That is particularly the case given the power of the Court to make the kind of case management directions I have described.
  10. Having set up the false binary choice described in paragraph 58, Mr Lorimer-Wing is asking the court, on this appeal, to excuse him from the effects of the Unless Order even though he has not challenged any of the considerations that caused ICC Judge Barber to make that order in the first place. I will not do that. I did, however, indicate to the parties that I wanted to hear submissions from the parties as to the case management directions I should make for any quantum proceedings that are remitted to the ICC. I indicated to the parties that, given the change in circumstances now that Mr Ashing’s report is known to be defective, I would consider giving Mr Lorimer-Wing some limited rights to comment on expert materials in the remitted proceedings despite the Unless Order having been triggered.
  11. I conclude by dealing with some final points that Mr Lorimer-Wing raised:i) Mr Lorimer-Wing submits that Mr Hashmi repeatedly sought to exclude him from the ICC proceedings knowing that he could not pay the costs orders. However, the difficulty with that is that ICC Judge Barber has said that he can potentially pay, or at very least she is not satisfied that he cannot pay. There has been no challenge to that factual conclusion.ii) I can understand why Mr Lorimer-Wing took exception to Mr Hashmi’s conduct in seeking security for costs of the Unless Order Appeal. Perhaps with hindsight, it does seem somewhat unattractive that an early response to the knowledge that Mr Ashing’s report was defective was to seek security for costs that could have excluded Mr Lorimer-Wing from continuing to prosecute that appeal. However, Rajah J refused the application. In my judgment, Mr Lorimer-Wing’s objection to Mr Hashmi’s conduct provides no separate basis of challenge to the Unless Order.
  12. Ground 1 is dismissed.

Ground 2 – Article 6 of European Convention on Human Rights

  1. No separate arguments were ultimately advanced on Ground 2 and I consider rightly so.
  2. I did not understand Mr Lorimer-Wing to argue that Article 6 precluded the making of the Unless Order. To the extent he did, that argument is at odds with the judgment of the Court of Appeal in JSC BTA Bank v Ablyazov (No 8)[2013] 1 WLR 1331, [2012] EWCA Civ 1411. Even following the Unless Order, the dispute still fell to be determined by an independent court.
  3. Therefore, as I understood them, Mr Lorimer-Wing’s points on Article 6 overlapped with the points on the fairness or otherwise of maintaining the Unless Order that I have considered under Ground 1. I have sought to explain that there was no effective challenge to the ICC Judge Barber’s decision to make the Unless Order in the light of circumstances as they existed at the time. I have explained why I do not accept the conclusion that, in the light of changed circumstances, it should now be set aside altogether. I do not consider that Article 6 requires a conclusion different from that I have expressed in connection with Ground 1.

Disposition

  1. The Unless Order Appeal is dismissed.