Another Expert Has A Bad Day
Recently, I wrote about Jeff Davidson, a friendly chap I had known for many years and, like me, one of the early practitioners of forensic accounting. He came a cropper in a case concerning the “diversion” of £1,900,000,000 (yes, really!) from a Ukrainian bank. This was a huge case which was heard over 43 days, with one claimant (the bank), eight defendants and a huge crowd of KCs and junior counsel in what must have been a very crowded courtroom.
The crux of the expert’s behaviour was that he was disciplined for an unconnected matter and was excluded from membership of ICAEW, but he didn’t tell anybody. The fact that Jeff had been criticised in other cases, and the fact that the Charity Commission are investigating the whereabouts of £500,000 from a charity of which he and his wife were sole trustees (now removed), didn’t help him. And when it came out that he was no longer a chartered accountant and shouldn’t be acting as an expert witness, one of his responses was a refusal to be examined on these other cases from a fear of self-incrimination. That says it all.
They say that you wait ages for a bus, and then three come all at once. Well, I am determined to act properly as an expert so that I don’t become the third bus, but we do have a second bus, and again, he is an expert with a high profile, whom I have known for many years. He is a chartered accountant called Vivian Cohen.
The case was Peter Marples & Ors -v- Secretary of State for Education [2025] EWHC 2794 (Ch).
The facts of the case are simple. Marples had been a partner at KPMG and the lead partner in their education service. He left KPMG, and he, with his family, set up a company to provide apprenticeship training services, and had a valuable contract for that with the Skills Funding Agency (SFA), part of the DfE.
The company was to be sold, so Marples told the SFA of the change in ownership. Their chief executive replied, disapproving of the purchaser. The deal collapsed, the Marples family lost £27 million plus a possible £10million in loan notes, and the company lost its contract over allegations of data manipulation, causing the company’s shares to be worthless.
The Marples family brought a claim against the DfE for negligence and misfeasance in public office. The outcome is not relevant to us, though I believe the claim failed. But what does interest us is the behaviour of the Marples’ expert, one Vivian Cohen. (Interestingly, the expert for the opposing party was the same Jeff Davidson, though this time he did not come under criticism. I merely question how he could practise as an expert now with no professional qualification.)
Now, any litigation lawyer will know off by heart the words of Lord Wilberforce in Whitehouse -v- Jordan [1981] 1 All ER 267, as I do:
“The report of the expert shall be the independent product of the expert, uninfluenced as to form and content by the exigencies of litigation.”
These words resound through Cresswell J’s seminal case of the Ikarian Reefer [1993] and the Civil Procedure Rules. In short, the expert’s opinions are their own, and neither the instructing lawyer nor the client can interfere with them. And it’s not only the expert’s report; Questions of the Expert and the Joint Statement of Experts are part of the report, and they become the expert’s evidence in chief at trial. They are his/her opinions alone.
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So what happens if the client insists on playing a part in writing the expert’s report and the joint statement? Knowing Vivian as I do, he is a really gentle gentleman, and I can see that he would find it hard to resist if Mr Marples, whom I do not know, approached him at all forcefully. But such an approach led to dire consequences for Vivian and for Mr Marples.
It emerged (the judgment does not say how) that Mr Marples, himself a qualified accountant, had worked closely with Mr Cohen both in writing the expert report and in compiling Mr Cohen’s part of the Joint Statement. An application was made to the court for permission for this expert’s evidence to be revoked, or for this evidence to be given no weight. This was serious; it would have left the claimant’s family with no expert evidence.
But after repeating much of what I say above about experts and the CPR, the trial judge said:
“The expert’s role is to provide independent assistance to the Court by way of objective, unbiased opinion on matters within their expertise.”
This is fundamental to all the expert witness work I do, and it should apply to all experts; indeed, it must.
The judgment sets out the degree of involvement which Mr Marples had in Mr Cohen’s work, the number of times drafts were passed between the two of them. Mr Cohen even warned Mr Marples not to tell the solicitors that the two of them were working together, so he knew full well that this was improper. The judge, Rajah J, even said that he did not know the extent of the joint working:
“I do not accept that I have been given the full story of the involvement of Peter Marples in the preparation of Mr Cohen’s expert report and the joint statement. It seems to me that both have approached the work on expert evidence as a joint exercise, with Mr Cohen happy to defer to Mr Marples as the client.”
The conclusion was unavoidable:
“I have no confidence in Mr Cohen’s ability to act in accordance with his obligations as an expert witness. I accordingly refuse the claimant’s permission to rely upon the evidence and reports of Mr Cohen.”
There was a further embarrassment for Vivian. The judge pointed out that he had been criticised as an expert at least twice before. In Pepe’s Piri Piri Ltd -v- Aljunaid [2019] EWHC 2097 (Ch) the judge said he had “approached the exercise more as an advocate than as an expert complying with the requirements of CPR Part 35” and for having expressed an “understanding of his role as being to present the case of the party instructing him in the most favourable light.” That’s so wrong!
When he was reminded of that case by the judge, Vivian said he couldn’t remember it. Again, that says it all.
