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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Liverpool Roman Catholic Archiocesan Trust v. Goldberg [2001] EWHC Ch 396 (6th July, 2001) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2001/396.html Cite as: [2001] EWHC Ch 396, [2001] 1 WLR 2337, [2001] WLR 2337

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Liverpool Roman Catholic Archiocesan Trust v. Goldberg [2001] EWHC Ch 396 (6th July, 2001)

Case No: HC 9902725

IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 6^th July 2001

B e f o r e :

THE HONOURABLE MR JUSTICE EVANS - LOMBE

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Michael Briggs QC/Giles Goodfellow (instructed by McCormicks for the Trustees)

Andrew Simmonds QC/David Owen (instructed by Linklaters for the Defendant)

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JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

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The Hon. Mr. Justice Evans - Lombe Mr Justice Evans - Lombe :

JUDGMENT

1. This case concerns a claim by the corporate trustee of the Roman Catholic Archdiocese of Liverpool against the defendant for professional negligence in the advice that he gave with relation to the trustee's tax affairs between November 1989 and October 1996. The hearing concluded on the 6^th April of this year when I reserved judgment. I circulated a draft of that judgment to the parties on the 6^th June. I did this so that the parties should have an opportunity to correct minor errors, and, also at the parties' request to deal with a particular point in the case. The day fixed for the formal handing down of the judgment was the 3^rd July. However on the evening before that day I received a joint application by both parties asking me not to hand down my judgment because they had arrived at an agreement which would settle the issues between them.
2. It is well-established by authority going back a considerable time that parties to civil litigation may settle their dispute by agreement and withdraw a case from a Judge at any stage up to the moment when he has started to deliver judgment. There are certain public law exceptions to this general rule. See Prudential Assurance Company Ltd v McBains Cooper [2000] 1WLR 2000 of the Court of Appeal.
3. That case goes on to decide that where, as very often happens today, a Judge has circulated a draft judgment to the parties for whatever purpose, at a time when the dispute between them remains unsettled, the process of giving judgment has started, and the Judge retains a discretion to continue that process by handing down his judgment even though all parties to the litigation have asked for him not to do so. In that case the Court of Appeal refused to interfere with the decision of a Judge, who had circulated a draft of his judgment to the litigants before him, to give judgment against their wishes on the ground that there were important points in the case which his judgment decided as to which there was a public interest that his decision should be known.
4. In the present case I have concluded, in the exercise of the same discretion, that I should not hand down the entirety of my judgment. I was informed that a condition of the settlement between the parties before me, was that judgment would not be given. The course which I have chosen therefore means that that settlement will take effect saving the time and expense involved in appeals, by either party, for which I would have been minded to give permission.
5. I do however think that I should deal with one question which arose in the course of the case and in respect of which I received submissions. This question concerns the admissibility as expert evidence of the evidence of Mr Flesch QC called on behalf of the defendant. This is a procedural question of some general importance and does not concern the merits of the parties' cases with which I had to deal.
6. In a judgment given on 2^nd March of this year at a pre-trial review and which was reported in the Times, Neuberger J dealt with an application to rule Mr Flesch's evidence inadmissible on the grounds, first, that his close relationship with the Defendant (they had known each other for 28 years and were good friends, they are also in the same Chambers) rendered Mr Flesch incapable of fulfilling the role of an expert witness, and, secondly, that his evidence amounted to no more than saying what he would have done and advised in the Defendant's position. In the result Neuberger J stood the application over to trial. On the way he expressed the opinion that "the fact that Mr Flesch has had a close personal relationship, and a close professional relationship with the Defendant in the sense that they had been friends and in the same Chambers for a long time, does not mean as a matter of law, or even as a matter-of-fact, that Mr Flesch is incapable of fulfilling the functions described by Lord Wilberforce and Cresswell J (in Whitehouse v Jordan 1981 1WLR 246 and the Ikarian Reefer 1993 2 Lloyds's reports 68 respectively)."
7. With some diffidence I would draw attention to a recent judgment of my own in the Barings litigation given on the 9^th February of this year which dealt with the admissibility of expert evidence. In that judgment I expressed the view that the question of whether particular evidence was admissible as expert evidence was to be decided in two stages. The first stage was an examination of whether the evidence in question qualified as admissible expert evidence, and, the second stage was an inquiry whether, if so, it should actually be admitted as of assistance to the Court. The first stage turns on whether the evidence comes within the provisions of section 3 of the Civil Evidence Act 1972. The authorities show that to qualify as expert evidence within section 3, the party seeking to call the evidence must satisfy the Court of the existence of a body of expertise governed by recognised standards or rules of conduct capable of influencing the Court's decision on any of the issues which it has to decide and that the witness to be called has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of those issues.
8. The second stage turns on the nature of the evidence sought to be given. Thus, where the question is one of law, expert evidence will be excluded because that is within the expertise of the Court and expert evidence does not assist see Midland Bank Trust Company Limited v Hett Stubbs & Kemp 1979 1 CH page 384. Neuberger J expressed the view that part of Mr Flesch's evidence was likely to be held inadmissible under this head.
9. The question of the admissibility of Mr Flesch's evidence was raised early in the trial. I decided that I would not then rule on its admissibility but deal with that question in the course of my judgment. It was, however, accepted that large sections of his expert's report would not be relied upon because they dealt with points of law. The surviving parts of the report were directed primarily to Mr Flesch's experience of dealing with the Revenue in the course of negotiations to settle back tax claims and the proper tactics to be employed in attempting to settle such a claim without recourse to litigation. Mr Flesch was called and was cross-examined.
10. Mr Flesch's evidence qualified as that of an expert within section 3 but, in my judgment, the Court should disregard it on the ground that Mr Flesch was unable to fulfil the role of an expert witness because of his close relationship with the Defendant.
11. In his report, having described that relationship, Mr Flesch said this: -

"I do not believe that this (i.e. the relationship) will affect my evidence. I certainly accept that it should not do so but it is right that I should say that my personal sympathies are engaged to a greater degree than would probably be normal with an expert witness."

12. It seems to me that this admission rendered Mr Flesch's evidence unacceptable as the evidence of an expert on grounds of public policy that justice must be seen to be done as well as done. This is clear from the passage in the speech of Lord Wilberforce in Whitehouse v Jordan cited by Neuberger J where he says:-

"While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the Court should be, and should be seen to be the independent product of the expert, un-influenced as to form or content by the exigencies of litigation." (my emphasis added)

The role of an expert witness is special owing, as he does, duties to the Court which he must discharge notwithstanding the interest of the party calling him see per Cresswell J in the Ikarian Reefer.

13. I accept that neither section 3 nor the authorities under it expressly exclude the expert evidence of a friend of one or the parties. However, in my judgment, where it is demonstrated that there exists a relationship between the proposed expert and the party calling him which a reasonable observer might think was capable of affecting the views of the expert so as to make them unduly favourable to that party, his evidence should not be admitted however unbiased the conclusions of the expert might probably be. The question is one of fact, namely, the extent and nature of the relationship between the proposed witness and the party.
14. With great respect to the preliminary views expressed by Neuberger J, it seems to me that Mr Flesch's admission of the nature and the closeness of his relationship with the Defendant made him unsuitable, on grounds of public policy, to be called as an expert witness in support of the Defendant's case and his evidence, although it would otherwise have qualified within section 3, should not be admitted.