Mashal & Ors v Javed & Ors

[2025] EWHC 3195 (Ch)

The main issue in dispute here was whether monies paid over by Marshal to Javed were for the purposes of investment settling a debt. Each party was granted permission to adduce expert evidence in the field of forensic accounting to trace the monies and related expenses. Only Mashal instructed an expert.

HHJ Matthews described the report as a well presented classic exercise in forensic accountancy. However, the judge also noted that, except in one or two insignificant respects, it did not appear to be expert evidence at all: it was at best hearsay evidence of fact. This was because:

“the underlying documents themselves are the primary evidence, and [the expert] is simply reporting (some of) what they say. He is not adding any expert opinion of his own in doing so, such as a scientist might do in explaining a chemical process, or an interpreter might do in explaining what is meant by something written or spoken in a foreign language. He is simply making information contained in a great many existing documents more digestible for the parties and the judge by reducing them to a tabular or summary format.”

The judge went back to basics, referring to section 3(1) of the Civil Evidence Act 1972:

“Subject to any rules of court made in pursuance of … this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.”

Expert evidence within section 3 can be tendered only by someone who is qualified as an expert. The judge then referred to the words of Evans-Lombe J in Barings plc v Coopers & Lybrand [2001] PNLR 22, who said that an expert must satisfy “the court that he has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of" the issues in the case.

This might be through formal qualification or possibly practical experience. But what matters is that the expertise is: “a recognised expertise governed by recognised standards and rules of conduct capable of influencing the court's decision on any of the issues which it has to decide" (Barings plc v Coopers & Lybrand [2001] PNLR 22). Someone who does possess a recognised expertise is an expert for this purpose only when giving an opinion within that expertise. The judge gave the example of a qualified and experienced lawyer having no basis for giving expert evidence of property valuation, merely by reason of possessing that legal expertise.

Here, the expert was a qualified and experienced accountant and “no doubt” an expert in the sense described above. However, what the expert did not do was exercise any "recognised expertise governed by recognised standards and rules of conduct". Rather, the expert reviewed the available documents, extracted relevant information, and reorganised it in a more easily digestible format.

Whilst the judge noted that this would save a great deal of time in court; it was typically the legal team who “prepared such tabular and other diagrammatic aids to a more rapid understanding of the words or figures or other information contained in the documents which would be available in evidence at the trial”.

This part of the trial preparation was “all perfectly proper” and “very helpful” but it was not expert evidence of anything. For example, if the report included comments and criticisms of accounting statements made by corporate bodies, partnerships, trustees, and others which rely on the expert’s training and experience, then that might be different.

Further, the expert on occasion gave comments that were not opinions on any accountancy matter but instead of law, where the expert was not qualified.

Therefore here, the report in question was not expert evidence; it simply amounted to submissions in respect of the documents reviewed.

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