Expert Witness Article

Hyperlinks in expert reports

The Case

Stateline Transport Limited (‘Stateline’) had been operating a commercial freight storage operation in Dublin, without planning permission, on land leased from Tesco Ireland Limited (‘Tesco’). After the Fingal County Council commenced enforcement action, Tesco applied to the High Court of Ireland for an injunction requiring Stateline to cease its operations. The parties settled before the hearing, with Stateline agreeing to an order requiring it to cease the unauthorised use.

Stateline then applied, with Tesco’s consent, for a 12 month stay of the order, based on the public interest in their operations continuing, before subsequently appealing to the Court of Appeal of Ireland.

The expert evidence

In applying for the stay, Stateline relied on the evidence of four experts, including an economic expert, Dr Gurdgiev. The trial judge also directed that an affidavit be sworn exhibiting the briefing note provided to Dr Gurdgiev. The affidavit identified two errors in the briefing note.

Dr Gurdgiev’s report assessed the impact on the container storage capacity in the Dublin area if Stateline were required to cease its operations, concluding that it would increase costs for Irish importers and exporters, raising prices for end-users and export customers. The report relied on statistics published on the website of the Dublin Port Company which were accessible via a hyperlink in the report.

The trial judge noted that there were a number of discrepancies between the report, on the one hand, and the briefing note and the information on the Dublin Port Company’s website, on the other. Most significant was the omission from the report of any reference to proposed additional storage capacity to be provided by the Dublin Port Company. This omission undermined the confidence which the court could place in the report. The trial judge also noted that on certain critical matters the report relied uncritically on information provided by Stateline.

The Court of Appeal

One of Stateline’s arguments on appeal regarded the weight which should have been attached to the uncontradicted expert testimony it had adduced.

The judge noted that the trial judge had had no concerns about the credibility of Dr Gurdgiev, who was a highly respected and well qualified economist. He had been asked to produce his report in five days and clearly did not purport to have done independent research to confirm the underlying facts upon which he had been instructed.

The concerns that the trial judge found with Dr Gurdgiev’s evidence went to the weight of the evidence rather than its admissibility. That said, the court was not required to accept evidence because it was uncontradicted. It was also not strictly correct to characterise this as unopposed evidence, because Stateline knew that Tesco had consented to the application, in a commercial agreement, and would not oppose it.

With respect to the hyperlinks within Dr Gurdgiev’s report, the judge noted that “I do not accept the criticism that the trial judge engaged in independent research rather than addressing his concerns to the appellant. If material is hyper-linked in an expert’s report, then it constitutes part of the reference material upon which the report is based and a court is, at very least, entitled (if not expected) to look at it where it has concerns regarding the content of the report itself. This is not ‘independent research’ but rather an attempt to understand an expert report in its own terms.”

Article by Sean Mosby

For the full article with Learning Points, visit: https://ewi-live-portal.azurewebsites.net/News/hyperlinks-in-expertreports