Aston Risk Management Ltd v Jones & Ors

[2024] EWHC 252 (Ch) 

The defendants suggested that ARM’s expert should not be regarded as an independent expert witness, and that HHJ Cawson KC should disregard that evidence as being inadmissible. The basis for this was a contention that the expert was engaged at an early stage by ARM to provide advice which, it was suggested, ARM and its legal representatives had been less than frank about. The result was to compromise the expert’s independence.

During the course of the hearing, ARM voluntarily disclosed a “Preliminary Quantum Appraisal” dated 6 March 2020 prepared by the expert - a document that would, but for such waiver, probably have been privileged. The expert included as part of the introduction:

“My instructions are to undertake a preliminary appraisal of the loss of claim, as presented, and to provide a preliminary assessment of the quantum aspects of the constituent heads of loss as set out in the draft claim.

I am instructed in this matter as an accountant. My comments within this appraisal limited to my expertise as an accountant. I am not qualified to comment on matters of law nor am I qualified to comment on the legal merits of the claim.

This appraisal is prepared solely for the purpose of assisting my instructing solicitors in the furtherance of litigation and in assisting those instructing me to better understand the potential risk elements solely from a quantum viewpoint in advance of a proposed litigation funding application.”

HHJ Cawson KC said that the purpose of the document was: “merely to provide a preliminary indication from the point of view of an expert forensic accountant as to the quantum aspects of the claim as it was being formulated.” 

The document did deal with other heads of claim than those in respect of which the expert was ultimately asked to provide evidence for the quantum trial; the judge did not consider that the advice given somehow impinged upon the expert’s ability to give independent expert forensic accounting evidence. The judge also noted that it would not be unusual for an expert identified as a potential expert to provide an expert report for trial to be asked, at an earlier stage of the proceedings, to give a preliminary indication, or appraisal, of the issues that arise regarding quantum.

Further, the judge did not detect in the way that the expert gave evidence any partiality on their part. To the contrary, when asked a number of questions that were potentially inconsistent with, or disadvantageous to, ARM’s case, the expert gave what the judge considered to be frank answers that did not necessarily assist ARM’s case. Accordingly, there was no proper basis for ruling the expert’s evidence to be inadmissible as not being independent expert evidence. The expert was a good witness, who had clearly grasped the quantum issues that arose. The expert gave considered answers to the questions that were posed and the judge was of the view that he was entitled to place very considerable weight and reliance on that expert evidence.

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