When Is An Expert Not An Expert?
As any litigator in England and Wales knows, Part 35.3 of CPR states that the expert has an overriding duty “to help the court on matters within their expertise.” And that expertise is measured by membership of appropriate professional bodies.
I am typical: a fellow of the Institute of Chartered Accountants (ICAEW) and The Academy of Experts, and a member of the Chartered Arbitrators, among other qualifications.
But what if an accountancy expert were to lose his qualification during preparation for a case? Let me tell you about Jeffrey Davidson.
Jeff, like me, was one of the early specialists in forensic accountancy. A Cambridge graduate, he was an affable chap whom I met often at Institute events.
But about three years ago, I was asked to help a businessman who had bought a business which had to go to expert determination, and Jeff was the accountant chosen to make a binding decision on value.
The businessman was unhappy with the value, and my work quickly established that Jeff had committed a manifest error, which caused my client to overpay by about £100,000.
I drew Jeff’s attention to this mistake, and he first said it was none of my business. When I pressed him, he said he would not alter his finding.
My client wanted to sell the business, and would find that difficult with ongoing litigation, so he swallowed the £100,000 and did not take the case to court.
Need help with a similar issue? Speak to Chris.
But whilst this was being considered, both the client and I took a close look at Jeff, and we discovered two things. One was that something irregular may have happened with a charitable trust in which Jeff and his wife were the sole trustees, and that was to be investigated by the Charity Commission. I have not seen the outcome.
The other is that a client had lodged complaints, which were being investigated by the ICAEW. They asked Jeff to disclose certain documents to aid their enquiry, but he pleaded client confidentiality (not valid in these circumstances) and then stated that the documents had to be redacted, which, for some reason, was taking several months.
It is against our Royal Charter to refuse to supply documents in an enquiry, and Jeff was brought before the Disciplinary Committee. He was given a severe reprimand, a fine of £5,000, costs of £8,125 and an order to provide the documents within four weeks.
When those documents were still not provided, he automatically lost his membership of ICAEW; he was no longer a chartered accountant.
Interestingly, this was going on as a major trial approached in which Jeff was one of the forensic accountant expert witnesses. This was JSC Commercial Bank Privatbank -v- Igor Valeryevich Kolomoisky & Ors [2025] EWHC 1987 (Ch), which concerned the alleged theft of £1.9 billion (yes, £1,900,000,000!) from a Ukrainian bank just before it was nationalised.
There were 8 defendants, including Ukrainian, English and Cypriot companies. The bank as claimants had 4 KCs and 4 junior counsel, and the various defendants fielded 6 KCs and 5 junior counsel. It must have been quite a jamboree, and the courtroom must have been very crowded.
The hearing was over 43 days in 2023, and the judgment, by Trower J, was a heavy piece of work issued on 30 July 2025. It ran to 490 pages, and the contents page alone ran to 4 pages. I confess I have not read it all.
The interesting part for us is at paragraphs 305 to 314 (there were 2025 paragraphs in all!). The learned judge assessed the work of the forensic accountant for the bank and for the first two defendants. Jeff was an expert for the first defendant.
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After commenting on the work of the three expert accountants, Trower J turned to the status of Jeff at paragraph 311, which I quote in full:
“At the time of their reports, each of the experts was a fellow of the Institute of Chartered Accountants in England and Wales. (ICAEW). During the course of July 2023, after the trial had commenced but before he was called to give evidence, it came to the attention of the Bank’s solicitors that Mr Davidson’s status as a member of ICAEW was now recorded as Ceased with a sub-status recorded as Cessated.
They wrote to Mr Kolomansky’s solicitors, drawing attention to the cessation and attaching a copy of his disciplinary record, which disclosed that he had been the subject of a severe reprimand in relation to two disciplinary matters in respect of which there had been hearings on 8 March 2023. None of this information had been disclosed by Mr Davidson either to the Bank or to the court.”
Trower J goes on at 312 to 314, which are lengthy paragraphs. I will quote parts of these:
“Mr Davidson’s explanation for what had occurred was eventually revealed on 29 September 2023, five days before he was due to give evidence.”
“He also disclosed that the Charity Commission had removed him as trustee of two charities and that those charities had been the subject of statutory enquiries…” (One allegation was that funds of £500,000 were missing.)
“In his witness statement, Mr Davidson also gave notice that he would rely on his privilege against self-incrimination to justify his refusal to answer any questions about the August 2021 complaint to the ICAEW and the Charity Commission enquiry.”
In light of the position adopted by Mr Davidson, it was not possible for the court to obtain a full picture of what had occurred or the extent to which the matters in respect of which he had been investigated or criticised might have been relevant to the quality of his evidence.”
“In my view, where an expert presents his evidence as a member of a professional organisation, which is expected by him to give the court assurance as to his ability to act in the case, he is under a duty to inform the court if his membership has ceased, more particularly where the cessation is linked to disciplinary proceedings against him.”
“…Mr Davidson also failed to disclose that he has been the subject of a finding in another case that his opinion was based on wholly unsupported and fanciful assumptions, which ignored the objective facts and undermined his credibility as an independent expert (per Leggat LJ in Al Neheyan -v- Kent [2018] EWHC 333 (Comm) at [1951]).
I draw two morals:
- Experts must inform the court if they have been drummed out of the regiment, and if they have been criticised as experts in other cases, and
- As I’ve said many times before, solicitors must choose their experts with care.
