Mengiste & Anr v Endowment Fund For The Rehabilitation of Tigray & Others

[2013] EWHC 599 (Ch)

Extreme examples of when things go wrong can often be dismissed on the grounds of, “well it wouldn’t happen to me”. That may well be the reaction of all experts, and those who instruct them, when reading the Mengiste case, especially when one reads the following words of Mr Justice Peter Smith where he noted the following problems with the Claimant’s expert evidence:

(i) He had very little appropriate qualification to give expert evidence on these matters.

(ii) He did not understand his duties as an expert to the court.

(iii) These duties and his potential exposure if his evidence was given recklessly or negligently were not explained to him before he signed his experts report (contrary to the Expert Witness Protocol).

The Judge noted that the expert repeatedly strayed into the argumentative and also made strongly worded criticisms which were simply not sustainable on the thought processes in his report. This led to the “thorough and comprehensive destruction” of the expert during that cross-examination. What was particularly difficult for the expert, and more significantly for those instructing him, was that the Judge noted the following:

“The difficulty was that [the expert] clearly had something of worth to say. He was honest in his evidence, but his answers were coloured by his clear desire to argue the case on behalf of the Claimants and his lack of training as an expert.”

Whilst the Judge laid the blame squarely at the door of those instructing the expert, noting that he had been “thrown to the wolves without any proper protection or advice as to the nature of his role and his duties and his potential liabilities”, the case does stand as a stark reminder of the importance of ensuring that your expert is truly an expert in the field you need and that your expert remembers above all else to bear in mind their duties to the court and not the party paying them.

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