This case is of interest not only for the criticism of the expert's tendency to advocate but also for the fact that the judge, Mr Justiice Freeman, took time to look at the evidence the expert had given in another case.
For the full judgement, see link below.
Excerpts from judgement in Bitar v Bank of Beirut SAL [2022] EWHC 2163 (QB):
43 Although qualified to give expert evidence about Lebanese banking law, there were times when I was concerned about his tending towards being an advocate which impaired the independence of his evidence. He had particular difficulties in dealing with matters in point to the issues in the instant case which had been considered in Manoukian in a way contrary to the bank’s case in Manoukian and contrary to the case of the Bank in the instant case. Despite this, Dr Moghaizel sometimes took different positions from his position in Manoukian or from the position as found by Picken J.
44.Dr Moghaizel could have confronted the point up front. He could have pointed out the nature of the difficulty, and in a measured way explained why he was now taking a different position. Instead of doing this, the inconsistencies had to be extracted from him in cross-examination. As he rejected what was being put to him, from time to time seeking to argue the case in an unconvincing and unrealistic way, there were real questions about his objectivity or reliability bearing in mind that he had so recently been grappling with these issues. As an expert, it behoved him to give measured responses and expressly take into account contrary views. In the event, he had a tendency to veer towards the approach of an advocate by arguing for the different position rather than assisting the court as to how and why it could prefer that position.
45.A particular example which is more germane to the nature of the evidence of Dr Moghaizel than to the issues in the case concerned Article 26 of the Consumer Protection Law (“CPL”). Dr Moghaizel relied on writings of Nammour of 2006 for a proposition that the CPL did not apply to bank contracts with consumers. He did not refer to the same author’s writings in 2007 which corrected the relevant sentence. This mistake would have been easy to understand, but for the fact that this issue had arisen in the evidence in the Manoukian case. This omission showed a lack of attention to detail in respect of a matter which would have been expected to have been within the immediate recall of Dr Moghaizel. I shall refer to other instances of concern about Dr Moghaizel’s evidence later in this judgment. For the main part, I found the evidence of Professor Najm more helpful, measured and ultimately more informative than the evidence of Dr Moghaizel.
52.I am satisfied that it is appropriate to look at Urgent Matters Decisions for the following reasons:
(1)In Manoukian, Dr Moghaizel’s evidence started by saying that Urgent Matters Decisions could not be cited, and indeed not even in the Court of Appeal. Picken J in Manoukian rejected this submission in that a body of decisions pointing in the same direction must serve as some sort of indication as to what Lebanese law should be taken to be.
(2)In Manoukian, Dr Moghaizel himself cited a decision of an Urgent Matters Judge. He also modified his position in respect of a Court of Appeal decision by saying that it carried “less weight” rather than “no weight”. In the end, Counsel for the Bank in Manoukian did not adopt the evidence of Dr Moghaizel: see the judgment of Picken J at [86-106] and [115].
(3)It is consistent with the decision of Simon J in Yukos above and the extract from Dicey in the above quotation that decisions which provide evidence as to Lebanese law may carry at least some weight, particularly in an area where there is no Court of Cassation authority.
(4)According to Article 3 of the LCC, “In the absence of any applicable legal provision, the judge can draw upon previous test cases for guidance as much as he may let himself inspired by the strictures of commercial equity and loyalty.”
(5)I am fortified by Picken J’s conclusion in Manoukian at para. 115 that decisions including Urgent Matters Decisions are appropriately taken into account when seeking to derive assistance as to what Lebanese law is. I The decisions of the lower courts, absent evidence from the Court of Cassation, provide evidence for the English court as to the content of Lebanese law on the issues which they cover.