Posted on 9th August 2023 by Chris Makin

Statement Of Truth? Forget It!

Those of you (thank you!) who have had the patience and loyalty to read some of my past articles will be aware that I am quite scathing about the performance of some expert witnesses. In some cases it’s merely incompetence, but with others it’s more serious.

Looking at the incompetents first, we have such inept examples as in Van Oord Ltd & Anr -v- Allseas UK Ltd [2015] EWHC 3074 (TCC), where the expert failed in his duty by:

  • not even considering or formulating the costs as incurred by the claimant (and he was the costs expert!);
  • admitting in cross-examination that he did not even agree with his own report (this is amazing!) and
  • admitting that the views he had expressed in his report were merely the assertions of his clients, who themselves had resiled from those very assertions in their own cross-examination.

How pathetic is that? But read on – it gets worse.

How about the expert who thinks they are a good team player? This, from Thorpe LJ in Vernon -v- Bosley (No 1) [1996], when he talks of plaintiff and defendant walking down either side of the road, but the expert must be “…ever mindful of the need to walk straight down the middle of the road and to resist the temptation to join the party from whom his instructions come on the pavement.” The fact is that the expert must never be in one team or the other, but must always walk down the middle of the road.

Then we come to experts who purposely ignore their duty to the court, and knowingly fabricate evidence. There is a chilling example in Liverpool Victoria Insurance Company Ltd -v- Dr Asef Zafar [2019] EWCA Civ 392, where the medical expert produced an amended report, saying the claimant had more serious injuries that in his first report, and both reports (oops!) were disclosed to the defence. And LV, clearly tired of being misled by experts (“it’s only insurance – it won’t cost anything!”) took both the claimant’s solicitor and his expert to court for perjury. The result? The solicitor was jailed and is no longer a solicitor, and the so-called medical expert was warned that he had narrowly missed being jailed, too.

But now we come to a case which has not attracted the attention it deserves, a blatant example of expert witness reports and oral evidence being produced falsely on a truly industrial scale.

The case is Accident Exchange Ltd -v- Nathan John George-Broom and six others [2017] EWHC 1096 (Admin). This is the scene. Accident Exchange (“AE”) was a car hire and claims management company with a fleet of specialist and prestige vehicles which it provided to accident victims on a credit hire basis. Now, credit hire terms tend to be much higher than the basic hire rate, and motor insurers were keen to have the credit hire costs reduced.

It followed that many insurers engaged Autofocus Ltd (“AF”) to provide experts who would research the market, find equivalent prestige cars for hire at a more reasonable rate, and produce an expert report (and oral evidence in some cases) so that much reduced amounts were recovered by AE from insurers. Insurers loved it, but the figures were startling. In one such case (Archer -v- Skanska) the Recorder accepted that “Mr George-Broom gave careful and precise evidence about the researches which he carried out on behalf of the Defendant”, and the judge reduced the car hire charge from £32,963.61 to £11,358.20. It was all false; there was a retrial, this rate evidence was abandoned, and George-Broom was committed to prison.

The scale of the scam was huge: AE alleged that the activities of AF had cost them £126 million and caused three hundred redundancies.

AF went into insolvent liquidation, and after a tussle with the liquidator, the claimant obtained a vital piece of evidence: known as the Mirror Disk, it was a hard disk which recorded all the activities of the team at AF, including the number and duration of each and every telephone call made.

This was important, because the team at AF were “rates surveyors”, whose task it was to telephone car hire companies and ask for a quote of a daily rate for the particular car AE had supplied to the accident victim. Hire rates vary daily, and there was the question of availability, since not all hire companies keep all models of cars, especially the more exotic ones. Under many motor insurance policies, the insured has the right to have a loan car of the same or similar model whilst their own is being repaired. But if the damaged vehicle is a recent Aston Martin, or a McLaren, a loan car could be difficult to find.

On the face of it, each rates surveyor made their own calls: Do you have this model available? Would it have been available at the relevant time? What is your daily rate now? What would it have been at the relevant time?

Then each rates surveyor would write an expert report, sign a statement of truth, and if necessary give oral evidence at trial.

That was the theory, but the practice was very different:

  • Many of the car hire companies did not have the relevant vehicles available, but the report said they did.
  • There would be reference to the name of a person who gave the rates to the surveyor; in many cases, there was evidence that no such person had ever worked there.
  • Some of the car hire depots had not existed at the time of the hire, but the reports said they did.
  • Some of the rates were pure invention.
  • It was agreed evidence that a call to obtain a quote would take at least 3-4 minutes, but some calls quoted in expert reports were as short as 11 seconds.
  • AF kept a database of all the quotes obtained, so that if they couldn’t get one in future they could invent a quote from that database. All seven defendants denied at trial the existence of that database; the Mirror Disk showed it existed.
  • Rates surveyors made notes of quotes obtained before putting them on the database; all denied at trial that such notes were made.
  • There was coaching of the experts, with mock trials held, and the surveyors were taught the standard replies they should give in cross examination.
  • There was a cavalier approach to who had written the expert report; if the author was not going to be available at trial, a different expert would adopt the report and say at trial that this was their own research.
  • Some of the figures on the reports were changed, principally by the second defendant Elaine Walker, a director of AF.

The outcome was that all seven defendants were found guilty of perjury, and all were jailed for up to 13 months. And they could count themselves lucky that this was not the USA, where jail terms for such offences run to decades, not months.

This was such an extreme case that it is difficult to draw any moral. I thank the Lord that I live in the world of conscientious experts, who treat the Statement of Truth with the respect it deserves.

Pen on top of a report on a desk Read more about Chris Makin