UK: Expert Failing In Duty to Court May Be Reported To Professional Body
Pearce v Ove Arup Partnership Ltd & Others

On 2nd November Mr Justice Jacob gave a strongly worded judgment in the case of Pearce v. Ove Arup & Others, which emphasises the importance of ensuring an expert complies with his duty to the court under Part 35 of the Civil Procedure Rules ("CPR"). In this case the judge held that where there had been a failure to comply with that duty, the court could report that failure to the expert's professional body.

Mr Pearce alleged that the second defendant, Mr Koolhaas, and his Dutch firm of architects had surreptitiously and dishonestly made copies of plans for a town hall in Docklands, which Mr Pearce had made as part of a student project. It was alleged that these plans had been used directly in the design of a building in Rotterdam known as the Kunsthal, via a process of cutting and pasting.

The name of the case may be familiar to many because of an important interlocutory decision which went to the Court of Appeal on the question of whether the English High Court has jurisdiction to hear allegations of infringement of Dutch copyright.

During the proceedings the Defendants had accepted that under Dutch law copyright and moral rights subsisted in the plans for the Docklands town hall and such rights belonged to the Claimant. The only issue to be decided was therefore whether the Kunsthal and/or its design drawings infringed the Claimant's copyright in his Docklands plans. The Claimant identified 52 "similarities" between the Kunsthal designs and the Docklands plans, and said that because of such similarities an inference of copying arose.

Jacob J.'s robust conclusion was that the two buildings were nothing like each other and that the Claimant's case on copying was one of "pure fantasy - preposterous fantasy at that". He found that in many parts of the Claimant's evidence the Claimant had "developed a perception which does not accord with the facts." He further found that the Claimant's expert's evidence fell far short of the standards of objectivity required of expert evidence.

The Claimant's expert's conclusion was that copying had taken place, and that Mr Koolhaas must be lying if he denied it. The expert was not criticised for giving an opinion on the very question which the court had to decide (i.e. whether or not there was copying) per se, but his failure to give reasons for this conclusion beyond pointing out "similarities" between the designs was a serious failing.

Other criticisms of the expert included the expert's failure to state in his report the fact that he had not actually seen the Kunsthal, and his failure to consider exactly how the alleged copying could have taken place or how it would have helped in the design of the Kunsthal.

Jacob J. concluded that the "expert" evidence was so biased and irrational that the expert had failed in his duty to the court. The expert bore a heavy responsibility for the case ever coming to trial, with its attendant cost, expense and waste of time. He noted that there is no specific sanction in the CPR for breach of an expert's duty under Part 35 but he saw no reason why in a case such as this a judge should not refer that breach of duty to the expert's professional body (in this case RIBA). Whether a breach of duty under Part 35 was a breach of professional rules and what sanction was appropriate would then be a matter for that professional body. The judge therefore directed that, unless successful representations were made on behalf of the expert within 21 days, the expert's conduct in this case should be reported to RIBA.

"© Herbert Smith 2002

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