The case
The plaintiffs complained that monies entrusted by them to a United Arab Emirates company to the tune of €6,960,000 had been misappropriated.
Expert evidence
One of the experts purported to reach conclusions in relation to whether there was a misappropriation of the funds. The experts agreed a number of transactions.
Judgment
As to the expert’s conclusions in relation to whether there was a misappropriation of the funds, objection was taken by counsel for the defendants to this conclusion. Counsel made the point that these conclusions were a matter for the court rather than an expert witness. Counsel for the plaintiffs did not dispute that contention. Moreover, some of the expert’s conclusions were based on matters that had not been proved - such as the existence of an alleged loan and pledge. Her view was also predicated on the basis that the movement of money from the euro account to the US dollar account had taken place without the knowledge or consent of the plaintiffs. Those matters were plainly not issues for the application of any expertise by an expert. They were purely issues of fact for the court to decide.
In so far as the plaintiffs relied on the agreement reached by the experts, they appeared to have overlooked the provisions of O. 63A, r. 6(1) which makes clear that any agreement reached between experts is not binding on the parties. As Dowling explains in The Commercial Court, (2nd. Ed., 2012) at para. 8-42, the stipulation in O.63A, r. 6(1) that the outcome of a joint meeting shall not be in any way binding upon the parties is: "recognition of the fact that the expert is not an agent of the party who has the authority to make concessions or admissions on that party's behalf." While it might be difficult in practice for a party to disown an agreement between experts in relation to a matter within their area of expertise, the same cannot be said for an agreement reached between them in relation to facts. Moreover, an expert is not an agent of the party by whom he or she is retained. Therefore the court could see no basis on which the plaintiffs could seek to rely on any agreement reached between the accountants as to the underlying facts.
Learning points
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The court decides the facts.
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The court decides the ultimate issue(s).
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Beware basing conclusions on matters that have not been proved; provide conclusions based on alternative scenarios: ‘If the court finds x …. If the court finds y ……’
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Facts agreed by experts in a joint statement are not binding on the parties or court.
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Opinions agreed by experts in a joint statement are not binding on the parties or court but may be difficult in practice for a party to disown.