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Published 30 November 2020
The recent High Court judgment of McKillen v Tynan  IEHC 189 dismissed judicial review proceedings on grounds including that: (i) the Applicant’s two expert witnesses were not qualified to give evidence as experts in the proceedings; and (ii) even if they were, the expert witnesses were not suitably independent meaning that their evidence had “no weight given their patent desire to advance a case made by Mr McKillen”.
In 2009, the Oireachtas enacted the Anglo Irish Bank Corporation Act (the "Act") pursuant to which all shares in Anglo Irish Bank Plc (the “Bank”) were transferred to the Minister for Finance including Mr McKillen’s shares, valued at that time at approximately €22,000.
Section 22 of the Act required the Minister to appoint an Assessor to determine the amount of compensation (if any) payable to former shareholders in respect of the transferred shares and the associated rights extinguished by such transfer.
The process undertaken by the Assessor to determine the amount of compensation was provided for in section 25 of the Act. Mr McKillen (the “Applicant”) challenged this process by way of judicial review proceedings primarily on the grounds that the Assessor refused to provide the Applicant with the relevant information he needed to make submissions to the Assessor.
In support of his application, the Applicant relied on the evidence of two expert witnesses, Mr Bernard Somers and Dr Constantine Gurdgiev (the “Experts”). The Experts’ evidence was that the Applicant required the vast amounts of information requested from the Assessor in order for a reasonable valuation of the shareholding in the Bank to be performed. Pursuant to section 27 of the Act, before the Assessor submitted his report to the Minister, the Assessor was obliged to consider any submissions from persons entitled to do so "in respect of the aggregate value of the transferred shares and extinguished rights”. The Experts argued that the requested information was necessary in order for the Applicant to make a meaningful submission to the Assessor.
The Court reiterated the well-known legal principles set out in the English case of The Ikarian Reefer  2 Lloyd’s Rep 68 (approved in this jurisdiction most recently in the Supreme Court decision of O 'Leary v Mercy University Hospital  IESC 48), these being that experts should:
(i) be independent and uninfluenced in form or content by the exigencies of litigation;(ii) provide independent assistance to the court by way of objective, unbiased, opinion in relation to matters within their expertise and should never act as advocates; and(iii) make it clear when a particular question or issue is outside their expertise.
The Court made reference to the affidavits of the Experts noting that both had described the reason for their evidence as being "for the purposes of supporting” the Applicant’s claim - a fact which the Court described as being “not a good start in terms of independence”.
The Court also noted that both Expert’s affidavits contained a near verbatim concluding paragraph which the Court described as also not being consistent with the requirement of independence.
Another major concern the Court had was the Experts acting as advocates for the Applicant. The Court found that the use of “denigratory language” by Mr Somers towards the Assessor was “more consistent with an address by a particularly acerbic Counsel than with the moderate and precise language one would expect from a witness with true expertise…”. The Court also raised concerns about the way in which Mr Somers overreached himself in giving evidence about matters of law.
In relation to Dr Gurdgiev’s evidence, the Court noted that some of the language used in his affidavit followed a “familiar pattern… of emotive language in advancing Mr. McKillen's case” which went beyond the scope of any stated expertise on the part of Dr. Gurdgiev. The tone of portions of Dr Gurdgiev’s evidence was described as “redolent of the peroration of a speech by Counsel rather than the considered evidence of an expert who wishes to assist the Court...”
The Court highlighted that a party seeking to adduce expert evidence needed in the first instance to establish that the expert had sufficient experience, training or knowledge in relation to the matter upon which he or she is to give evidence.
In considering the experience of the Experts, Mr Somers was a company director, a business consultant and had been a director of AIB and the Central Bank of Ireland. Dr Gurdgiev was an economist. However, neither had “ever valued a shareholding in any company, let alone a bank” and neither expert had “qualifications which would suggest that they have the capacity to advise on the valuation of the shareholding”.
Further, neither Expert had referred to any “guideline, academic work, or practical paper relating to the valuation of a shareholding in a bank” and as such there was no evidence to suggest why they as individuals were qualified to provide this evidence.
Accordingly, the Court held that that the Applicant had not discharged the burden of establishing that the Experts had the necessary experience, training or knowledge to act as an expert witness with regard to the valuation of the shareholding in the Bank. The Court further noted that even if it was wrong on this, the Court would have placed no weight on their evidence given “their patent desire to advance” the Applicant’s case.
This judgment highlights the importance of expert witnesses having the necessary expertise in the particular area they intend to give evidence on. The Courts will closely examine an expert’s experience and it will not be taken as read that an expert witness has the necessary expertise. In any event, where an expert witness is found to have the necessary expertise, it is of critical importance that their evidence is independent and that they are not perceived to be a ‘hired gun’. Experts owe their principal duty to the Court and “it is only because of their expertise and assumed independence that they are entitled to offer opinion evidence on matters central to the Courts determination” (Emerald Meats Limited v. The Minister for Agriculture, Ireland & The Attorney General  IESC 48.)
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