Cayman Islands: The Making Of An Expert: A Summary Of The Duties Of Expert Witnesses


As one of the leading offshore jurisdictions globally for the resolution of complex financial services disputes, expert witnesses are frequently appointed to provide evidence to the Financial Services Division of the Grand Court of the Cayman Islands (the 'Court') on a wide array of disciplines. Their role is becoming increasingly important as the financial services industry continues to evolve and gives rise to the emergence of expertise in new categories of disputes, such as shareholder appraisal rights in the context of mergers and fair value petitions where the opinion of an expert can well determine the outcome of the case.

This memorandum focusses on some of the key pretrial procedural aspects relating to the appointment of experts in the Cayman Islands, including the duties they owe to the Court, the required form and content of their reports, and meetings between party appointed experts.

Directions for the appointment of an expert

Except with the leave of the Court or where all parties agree, expert evidence cannot be adduced.1 In practice this means that if the parties are unable to agree upon directions for the appointment of one or more experts in a particular discipline (e.g. forensic accountancy, or foreign law), the requesting party must apply to the Court seeking a direction to that effect. Such applications would ordinarily be determined by the Court at a directions hearing or case management conference shortly after the commencement of the proceedings. The directions available to the parties and the Court vary and will be tailored to the proceedings in hand but common elements are (a) identifying the scope of the expert evidence; (b) the form in which the expert evidence is to be provided (a written report being the default and preferred form); (c) the deadline for filing and exchanging such reports; (d) whether a sole expert may be utilised, or whether the parties may appoint separate experts; (e) the deadline for any meetings between the separate experts in an attempt to narrow the issues in dispute; and (f) the deadline for the filing and exchanging of any reply reports.

The question of determining the appropriate number of experts was considered by the Court in the recent decision of In the Matter of Qunar Cayman Islands Ltd,2 which concerned a fair value petition under Section 238 of the Cayman Islands Companies Law3 where there were multiple dissenters. If each dissenter were to be permitted to instruct their own valuation expert, the Court would have needed to hear evidence from five different experts. The Court, pursuant to its case management powers, decided that one expert should be instructed by the dissenters jointly and severally on the basis that their interests ought to be aligned, and that this would not infringe their right to a fair trial.

General requirements of an expert

Paragraph B5.2 of the Second Edition of the Financial Services Division Guide sets out eight general requirements of an expert. Those eight requirements, which are also commonly referred to as the 'duties' of an expert, are as follows:

  1. It is the duty of an expert to help the Court on the matters within his expertise. This duty is paramount and overrides any obligation to the party from whom the expert has received instructions or by whom he is paid.
  2. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced by the pressures of litigation or any party.
  3. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness should never assume the role of an advocate or seek to promote his client's case.
  4. An expert witness should not omit to consider material facts which could detract from his concluding opinion.
  5. An expert witness should make it clear when a particular question or issue falls outside his area of expertise.
  6. If an expert's opinion is not properly researched because he considers that insufficient data is available, this must be stated in his report with a clear indication that his opinion is no more than a provisional one.
  7. In a case where an expert witness who has prepared a report is unable to confirm that the report contains the truth, the whole truth and nothing but the truth without some qualification, that qualification must be clearly stated in the report.
  8. If, after the exchange of reports, an expert witness changes his view on a material matter having read another expert's report or for any other reason, such changes of view should be communicated in writing (through the party's attorneys) to the other side without delay, and, when appropriate, to the Court.

The second of these requirements is vital, and is consistent with the finding of Lord Wilberforce in the House of Lords decision of Whitehouse v Jordan,4 in which he said:

'While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self-defeating.'

The duties were also considered by the Court in the matter of Al Sadik v Investcorp Bank BSC and Five Others5 in which the Court was less than impressed by the evidence given by one of the experts. The Honourable Justice Jones held that the evidence of the plaintiff 's expert was largely inadmissible on the basis that the expert had been asked to provide opinions on matters which were irrelevant, outside the expert's expertise, and on matters of law which were for the Court to decide. It was held that the expert's reports were adversarial both in tone and content; the terms of reference had encouraged the expert to take a judgmental approach; and the cross-examination of the expert took on the character of a debate in which the expert advocated the plaintiff 's case. Given those findings it was no surprise that the Judge held that the expert had not met the required standards of an expert witness, and as such, the Court approached the evidence provided with a high degree of caution.

Form and content of expert report

Expert reports must comply with the following requirements:6

  1. In stating the substance of all material instructions on the basis of which his report is written an expert witness should state the facts or assumptions upon which his opinion is based.
  2. The expert must make it clear which, if any, of the facts stated are within his own direct knowledge and which are not.
  3. If a stated assumption is, in the opinion of the expert witness, unreasonable or unlikely he should state that clearly.
  4. The expert's report must be limited to matters relevant to the issue or issues in the list of issues to which the relevant expert evidence relates and for which leave to call such expert evidence has been given by the Court.

To assist the experts in fulfilling the above requirements, the parties might seek to agree in advance a common scope of issues to be determined by them, which can be in the form of a series of questions based on assumed facts.

It is important that these questions are settled between the parties at an early stage in order for the trial to proceed expeditiously. In the recent decision of In the Matter of E-House (China) Holdings Limited,7 the petitioner sought an order, after exchange of expert reports (together consisting of over 700 pages) and after the experts having discussed the matters on which they are agreed and the differences which remain between them, to permit the experts to ask five further written questions on issues that had not already been dealt with in their reports. This had the potential effect of widening their scope and delaying the trial of the proceedings. The Court, in exercising its case management powers, refused the order drawing particular reference to the fact that the request to vary the consent order in this instance came from the attorneys and not the experts. The decision also emphasised the substantial authority experts possess in satisfying themselves that they have access to all information they require. The Honourable Justice Mangatal commented:

'If such a need for further questions exists, the Court should expect an expert to say so plainly and unambiguously, and also to indicate, at least in a general way, what additional matters he wishes to speak about.'

Statement of truth

As is customary throughout most common law jurisdictions, the report must contain a statement of truth, which should include a separate statement to the effect that the expert has read and complied with the eight general requirements set out above.8

Documents referred to in expert report

Unless already disclosed by the parties in the proceedings as part of the ordinary discovery process, any documents relied upon by the expert in their report, as well as copies of any unpublished sources, must be provided at the same time as the report.9

Any requests for inspection of a document referred to in a report should not be made if the document is publically available or can be obtained from an alternative source.10

Although there are no formal requirements for an expert's letter of instruction to be disclosed, it is common practice for this to be produced so that the Court and opposing party has full visibility on the scope of the instruction and materials that have been provided to the expert.

Meetings between experts

Where there is a direction for separate experts to meet, such meetings would typically take place shortly after the exchange of their respective reports and prior to the commencement of the trial.

The purpose of such meetings is to give the experts the opportunity (a) to discuss the expert issues; and (b) to decide, with the benefit of that discussion, which expert issues they share or can come to share the same expert opinion, and on which expert issues there remains a difference of expert opinion between them (and what that difference is).11

In order to facilitate this, the meetings should be conducted on a without prejudice basis, and neither the parties or their legal representatives should be in attendance.12

Following the meeting, the experts are expected to prepare a joint report.13 The joint report ought to record:14

  1. the fact that they have met, when and where and that they discussed the expert issues;
  2. the issues on which they agree;
  3. the issues on which they disagree; and
  4. a brief summary of the reasons for any such disagreement.

If experts reach agreement on an issue, that agreement shall not bind the parties unless they expressly agree to be bound by it.15


The importance of experts ensuring compliance with the above duties and requirements cannot be understated. Failure to comply may lead to the Court imposing adverse costs orders, or perhaps even disregarding the expert's evidence in its entirety.

Parties must also be committed at the outset of the proceedings towards attempting to agree appropriate and proportionate directions particularly in relation to the number of experts to be appointed, and the scope of their instructions, mindful of the Court's ability to exercise its overarching case management powers.


1 GCR O.38, r.36.

2 Unreported, 20 July 2017.

3 Section 238 of the Cayman Islands Companies Law provides minority shareholders who dissent from a statutory merger the right to a court determination as to the fair value of their shareholdings.

4 [1981] 1 WLR 246, at 256.

5 [2012] (1) CILR 451, at 458.

6 Paragraph B5.3(a) of the Second Edition of the Financial Services Division Guide.

7 Unreported, 3 November 2017.

8 Paragraph B5.4 of the Second Edition of the Financial Services Division Guide.

9 Paragraph B5.7(a) of the Second Edition of the Financial Services Division Guide.

10 Paragraph B5.7(c) of the Second Edition of the Financial Services Division Guide.

11 Paragraph B5.6(a) of the Second Edition of the Financial Services Division Guide.

12 Paragraph B5.6(c) and B5.6(d) of the Second Edition of the Financial Services Division Guide.

13 GCR O.38, r.38.

14 Paragraph B5.6(e) of the Second Edition of the Financial Services Division Guide.

15 Paragraph B5.6(f) of the Second Edition of the Financial Services Division Guide.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions