EWHC 881 (Ch)
The cost using a non-expert expert
This was a dispute over an inquiry as to damages following a ruling on liability in respect of a copyright infringement case. Mr Glew was in partnership with the claimant (SPE) in an enterprise that designed and produced shot-blasting machinery. The partnership split and Mr Glew went to work for a competitor. That competitor, the first defendant, then produced and marketed a shot-blasting machine that was similar in design to a prototype machine designed by SPE, the SP20.
Following the finding on liability in favour of SPE they called what they claimed to be expert evidence, given by a Mr Dean. He purported to give evidence on the issue of loss suffered by them as a result of the copyright infringement, in order to assess quantum. However, he had no expertise in the field of shot-blasting and his only experience in the field was from having acted as a management consultant to SPE for two years.
Mr Dean was called by SPE to give expert evidence as to the loss they had suffered as a result of the copyright infringement by the defendants. The defendants contended that the evidence was inadmissible.
The judge found the evidence to be inadmissible. He doubted if there has often been an expert less expert than he. The judge found the entire attempt by SPC to adduce evidence from Mr Dean to be unsatisfactory. Having rejected all of Mr Dean’s evidence the judge found that SPC had not proved any loss in terms of lost profit. Notwithstanding the absence of evidence, however, the judge awarded the claimants £40,000 damages in respect of ‘royalties’ that may have been payable to SPC by PPE for their use of the infringing machinery. That amount was calculated without the help of any evidence put forward by Mr Dean on the issue. The judge accepted that the figure was likely to be under-compensation.
One wonders whether SPC took its own decision or whether it received advice on the selection of the expert. The lack of relevant expertise, experience and independence was breathtaking. It seems that SPC were lucky to receive the ‘ball-park’ award made by the judge, and the judicial comment that the figure was likely to be under-compensation shows the direct link between the quality of the expert evidence called and the damages to be awarded. When deciding on calling expert evidence it may seem clever to call on an old friend. However, the reality is that it is counterproductive, as this case amply demonstrates. What you need is an expert who has relevant expertise and experience, is objective and is independent. Those are the ingredients likely to optimise a party’s position before a court or other tribunal.