by Matthew Austin December-08-2020 in Litigation & Dispute Resolution

Civil proceedings are often determined by the Judge’s view of the expert evidence put before the Court.  In order to safeguard the quality and reliability of expert evidence Order 39 of the Superior Court Rules provides as follows:

  1. It is the duty of an expert to assist the Court as to matters within his or her field of expertise. This duty overrides any obligation to any party paying the fee of the expert.

  2. Every report of an expert delivered pursuant to these Rules or to any order or direction of the Court shall:
    1. contain a statement acknowledging the duty mentioned in sub-rule (1);
    2. disclose any financial or economic interest of the expert, or of any person connected with the expert, in any business or economic activity of the party retaining that expert, including any sponsorship of or contribution to any research of the expert or of any University, institution or other body with which the expert was, is or will be connected, other than any fee agreed for the preparation by the expert of the report provided or to be provided in the proceedings concerned and any fee and expenses due in connection with the participation of the expert in the proceedings concerned.

It is against this backdrop that the Court made its decision in the recent High Court case of McKillen v Tynan [2020] IEHC 189.  The case involved the valuation of Anglo Irish Bank Plc shares, transferred to the Minister for Finance.  The mechanism for valuation was governed the Anglo Irish Bank Corporation Act, 2009 which provided for the appointment of an Assessor whose job it would be to determine “the fair and reasonable aggregate value of the transferred shares and the extinguished rights and the consequent amount of compensation, if any, payable to persons in respect of those shares and those rights.” Mr McKillen challenged the process by way of judicial proceedings.  In mounting that challenge he sought to rely on expert evidence from two experts, namely Mr Bernard Somers and Mr Constantin Gurdgiev.

A significant issue in the case before the Court was the contention advanced by Mr McKillen, relying on the evidence of Messrs Somers and Gourdiev, that he was unlawfully refused access to information which, they argued, was required to allow Mr McKillen make meaningful submissions to the Assessor in carrying out his role of valuing the shareholding.  In assessing the evidence of Messrs McKillen and Gourdiev, the Court had regard to the well-worn principles governing expert evidence in civil proceedings namely that experts should:

  • act independently;
  • provide objective, unbiased opinion;
  • not stray beyond their area of expertise.

The Court was of the view that the experts in question fell short, in this case, in relation to all three requirements. 

In relation to the requirement of independence the Court made reference to, and took a dim view of, the fact that both of the experts’ affidavits contained statements that their evidence was “for the purposes of supporting” the Applicant’s case. 

In relation to the requirement of objectivity, the Court noted that both of the experts had strayed into the role of advocate, remarking that the language used by both was akin to that which one might expect from Counsel rather than an expert witness.

In relation to the requirement of expertise, the Court remarked that neither expert had “ever valued a shareholding in any company, let alone a bank” and that neither expert had “qualifications which would suggest that they have the capacity to advise on the valuation of the shareholding”.

The Court determined that Mr McKillen could not rely on the evidence of the experts, given the shortcomings highlighted above, and dismissed the proceedings.

Conclusion

The case is a reminder of the fact that, although expert evidence is commonly deployed in litigation, it is in fact evidence which is primarily for the benefit of the Court, rather than to advance the case of one of the parties to the proceedings.  If expert evidence lacks independence, objectivity or is advanced outside witnesses’ expertise then this may proof fatal to the case of the party who has engaged the expert.

Back to Full News
Share this article:

About the Author

Matthew Austin
Matthew Austin

Matthew is a partner in the Commercial & Business team and has considerable expertise in a range of practice areas, having acted for Irish and International clients in domestic and multi-jurisdictional issues. Matthew has advised in civil and administrative law disputes and in regulatory and advisory matters including insolvency/restructuring, IP, defamation and media law, competition and consumer protection and data protection.