Expert WItness Journal - International Edition 2019 by ExpertWitness

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ISSN 2397-2769

INTERNATIONAL JOURNAL FOR LEGAL PROFESSIONALS & EXPERT WITNESSES

FINANCE - ARBITRATION-

CRYPTO CURRENCY - CASE LAW International Edition 2019

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Whether you talk to us about expert witness or consulting services, we’ll talk to you from a deeply informed point of view. Our combination of ser vices makes us unique, and a leading provider to clients in legal, ﬁnancial and insurance, food and drink, leisurre, manuf u acturing, energ y and waste sectors. At over 25 years old, our reputation is stronger than ever. In that time we have built a legacy of trust and conﬁdence — our clients value the depth and qualit y of our insight and we take great pride in delivering intelligence and results that they have real faith in. They tell us that this reassurance is priceless.

We work in partnership with clients to deliver a range of exp x ert witness services, including: Structural & Civil Engineering Asbestos Digital Forensics Hand Arm Vibration Mechanical & Electrical Engineering Noise Induced Hearing Loss Occupational Health Regulatory Investigations Restoration & Reinstatement

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ISSN 2397-2769

Welcome to the International Expert Witness Journal

INTERNATIONAL JOURNAL FOR LEGAL PROFESSIONALS & EXPERT WITNESSES

FINANCE - ARBITRATIONCRYPTO CURRENCY International Edition 2019

A New Dawn in Asia In his Nichomachean Ethics, Aristotle expressed an optimistic destination for the truth-finding process: “With a true view all the data harmonize, but with a false one the facts soon clash.” Fast forward a couple of millenia and you have John Stuart Mill acknowledging the subjectivity of forensic inquiry in his treatise, On Liberty: “He who knows only his own side of the case knows little of that.” Or, if you like, in the pithy articulation of Aganbegyan in the modern newspaper, The Guardian: “You only find complete unanimity in a cemetery.” The role of an expert in modern dispute resolution is a complex one, but its essence is captured in the goal of the Expert Witness Institute, i.e. to support the proper administration of justice and the early resolution of disputes through high-quality expert evidence. An expert, as we know, may be engaged by a court or tribunal, or by one of the disputants. In any case, the expert remains obliged to present an honest opinion based on an objective evaluation of the materials available to guide the court or tribunal towards the truth. As the Institute recognises, there is another equally important function of an expert. That is to resolve disputes promptly without even the need for clashing expert testimony in a hearing. The President of EWI Singapore, Mr Leslie Chew SC and I are very pleased that the august Expert Witness Institute, established in London in 1996, has chosen Singapore as it’s base in Asia to promote this important goal of the Institute. It is a privilege to write this note for the special international edition of the Expert Witness International Journal on the occasion of the EWI Singapore Conference 2019. On the 15th of October 2019, leading experts on myriad industries, academics, lawyers and end-users will converge in Singapore to explore the role and nature of Expert Evidence. It will no doubt be informative and stimulating. One might even be able to discuss Aristotle and Mill, or prove Aganbegyan wrong. Chan Leng Sun, SC Vice-President, Expert Witness Institute Singapore This Journal and any related website and products are sold and distributed on the terms and condition that: The publisher, contributors, editors and related parties are not responsible in any way for the actions or results taken any person, organisation or any party on basis of reading information, stories or contributions in this publication, website or related product. The publisher, contributors and related parties are not engaged in providing legal, financial or professional advice or services. The publisher, contributors, editors and consultants disclaim any and all liability and responsibility to any person or party, be they a purchaser, reader, advertiser or consumer of this publication or not in regards to the consequences and outcomes of anything done or omitted being in reliance whether partly or solely on the contents of this publication and related website and products. No third parties are to be paid for any services pertaining to be from ‘The Expert Witness Journal’. All rights reserved, material in this publication may not be reproduced without written consent. Editorial material and opinions expressed in The Expert Witness Journal are of the authors and do not necessary reflect the views of Expert Witness or The Expert Witness Journal. The publisher does not accept responsibility for advertising content. The information in this magazine does not constitute a legal standpoint. The publisher, editors, contributors and related parties shall have no responsibility for any action or omission by any other contributor, consultant, editor or related party. The information in this magazine does not constitute a legal standpoint. Printed in Great Britain 2019. Expert Witness Publishing Limited, Unit 1/06, Ivy Business Centre, Crown St, Failsworth, Manchester M35 9BG

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Expert Testimony Leads to Fairer Trials? A University of Manchester academic has become a leading expert of rap music in UK criminal cases. Dr Eithne Quinn (above) a University of Manchester academic is a leading expert of rap lyrics in UK murder cases.

In several cases in which Eithne has been instructed, the judge agreed to exclude the violent rap lyrics from the case pretrial, ruling that the lyrics were more prejudicial than probative.

When gangsta rap lyrics and videos are presented by prosecution counsels as evidence of intent to commit or confession of crime, defence teams have approached Dr Eithne Quinn, a rap expert and author of the book, 'Nuthin' But a 'G' Thang: The Culture and Commerce of Gangsta Rap' (Columbia University Press, 2005).

Though each case is different, Eithne believes that the use in prosecution cases of rap lyrics and videos is often prejudicial – in both a legal and a racial sense. Almost all of the defendants in the cases in which she has testified have been black. In one gang behaviour order ("gangbo") case in which she was instructed, the defendants faced a custodial sentence for breaching an injunction that banned them from performing their own music. In several recent cases, Eithne acted as an expert in cases in which “drill” rap videos were played in court. In these cases, prosecutors were trying to establish joint enterprise, a controversial legal doctrine. Eithne said: “The use of rap videos to establish bad character and dangerous association in joint enterprise murder cases, in which there are multiple defendants, is a particularly troubling trend.”

They ask her to explain why some young men write violent rap lyrics and what they mean. Eithne has now been instructed in more than a dozen cases including several London murder trials. Criminal barristers who have worked with her say that defendants have received fairer trials thanks to her testimony. In some trials, there is a direct link between a specific rap lyric or video and the incident under investigation, in which case, Eithne agrees, it is right that it should be scrutinised as evidence in court. However, in many cases she has seen prosecutors seek to introduce rap music that has no direct link to the crime in question.

Dr Eithne Quinn / Rap expert and author of 'Nuthin' But a 'G' Thang: The Culture and Commerce of Gangsta Rap

In several cases the Crown contended that the first-person character in the gangsta rap verse written by defendants should be taken at face value – as an autobiographical statement. They contended that the rap lyrics were 'blueprints' for violence.

Mr. Thomas Andrew Skerratt

But Eithne rebutted that the defendants were typically mimicking the verse form of famous rap stars. In her monograph she had explored the use of the persona device in gangsta rap. The first-person perspective helps establish all-important street credibility. So she finds it worrying that gangsta rap lyrics are being increasingly taken literally by the prosecution in serious criminal cases.

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Eithne said: "The outlandish personas they adopt draw on narrative traditions of boasting in black folklore. Due to the huge commercial popularity of gangsta rap, they have become very formulaic. Usually, young men write these rhymes in the hope of becoming successful rap artists or just to entertain and impress their friends.

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"Sadly, judges and juries, who aren't familiar with the music, may easily conflate rapper and persona." EXPERT WITNESS JOURNAL

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Contents

Some of the highlights of this issue Singapore’s MinLaw launches Public Consultation on Amendments to International Arbitration Act by CMS Holborn

page 8

Singapore’s MinLaw launches Public Consultation on Amendments to International Arbitration Act by John MacKenzie

page 11

In Case You Wondered… How Case Law Informs Practice by Professor Hugh Koch, Clinical Psychologist & Visiting Professor to Birmingham City University

page 15

Singapore High Court refuses to set aside arbitral award for alleged suppression of evidence by Pradeep Nair

page 20

Quantifying the Financial Effects of Termination by Michael Berrigan

page 24

Making Cross-border Mediation Real by Martin Burns

page 28

Crypto Assets, Financial Crime & Forensic Accounting by Paul Doxey

page 31

Working as an International Expert by Dr Thomas Walford

page 37

Events To build a membership base in Asia and so to expand the number of Experts who are members of the EWI; To source additional work for our existing membership base in the UK and internationally where there are not expects in Asia; To assist with the education and expertise of Experts in Asia such as to improve the quality of practicing experts; To have representation of the EWI in other Jurisdictions which may rival London as a hub for international litigation, arbitration and mediation in the future. www.ewi.org.uk/about/ewi-singapore

RICS Expert Witness Certificate Mon 19 Aug 2019 - Fri 15 Nov 2019 Time: 09:00 AM - 05:00 PM Venue: RICS, 125 Princes Street, Edinburgh, RICS support the work of our professionals in the Southeast Asia and Greater China regions. Founded on the official RICS Professional Guidance, this blended learning programme will ensure you develop the core competencies needed to be an effective expert witness.

Hong Kong Institute of Construction Managers

Alos Mon 9 Sep 2019 - Fri 6 Dec 2019 Time: 09:00 AM - 05:00 PM Venue: London, London, Venue tbc CPD: 26 hours formal CPD

Established in 1997, Hong Kong Institute of Construction Managers ("Institute" or "HKICM") is the only local professional institution representing the construction management profession in Hong Kong. As of 1 July 2019, the number of HKICM members reached 2,901, of which 1,149 were Corporate Members (including Fellows and Members).

Phone: +44 (0)24 7686 8555 UK Training enquiries: +44 (0)24 7686 8584 Email: contactrics@rics.org

Expert Witness Training Course With the objectives to equip members the knowledge and skills in handling these construction dispute issues with a view to resolving them in the first instance; and to provide a career development for members who may be interested to become an Expert Witness, the Institute has organized a 10-hour Expert Witness Training Course (the “Course”) in mid-2013 for HKICM members who would like to take the course and become expert witnesses upon Please visit www.hkicm.org.hk

EWI Singapore The Expert Witness Institute has established its first international presence in Singapore. It received permission from the Register of Societies on the 19th May 2019. This new initiative will serve the burgeoning Asian legal market with plans to increase the number of accredited expert witnesses available to share their knowledge with lawyers across a wide range of sectors including construction and finance. Objectives and aims EXPERT WITNESS JOURNAL

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Art Buyer sues Christie’s for failing to do its homework by Rachel Feldman, Art Law & More The buyer of a Nazi-looted painting claims Christie’s auction house did not research the work’s provenance thoroughly enough before it sold it to him.

among several paintings by Sisley stolen by the Nazis. Christie’s maintains it performed all reasonable checks on the artwork and that only four lost art databases were available and routinely investigated prior to the sale of the Sisley in 2008. One of the databases used by Mondex did not become digitally available until approximately two years after the auction. Christie’s also reiterated its commitment to identifying stolen artworks.

French art dealer, Alain Dreyfus, argues that if the auction house had dug deeper into the archives it would have discovered that Alfred Sisley’s ‘Premier jour de printemps à Moret’ (‘First Day of Spring in Moret’ 1889) had belonged to a Jewish collector in Paris. Alfred Lindon, né Lindonbaum, hid the painting in a Chase Bank safe and fled Paris when Hitler invaded in 1940. According to art recovery company, Mondex Corporation, the work was confiscated by the Nazis and stored at the Jeu de Paume. At one stage, it found its way into the private collection of Nazi official Hermann Goering.

Lindon’s heirs agree with Dreyfus that Christie’s did not sufficiently research the painting’s provenance prior to the sale. They are negotiating the return of the painting with Dreyfus. Whether or not Dreyfus will secure his refund from Christie’s after launching legal proceedings remains to be seen but he is determined. “With Christie’s, it’s war,” he vowed.

Dreyfus, who has a gallery in Basel, bought the Sisley from Christie’s New York in 2008 for US$338,500 (£253,089). At the time, there was no indication from the auction house that the painting was spoliated. In light of Mondex Corporation’s investigation, Dreyfus is suing Christie’s for a refund of the purchase price together with 8% interest.

Head of Mondex, James Palmer, warned art buyers to learn from the Dreyfus case and insist auction houses indemnify them against purchasing works, which might form the subject of future ownership claims. “This would likely encourage auction houses to be far more accountable and therefore to stop selling stolen art”, Palmer explained.

Mondex argues that if the auction house consulted a directory of looted items published in France in 1947 it would have discovered that ‘First Day of Spring’ was

This article was originally written by Rachel Feldman for Art Law & More, a dedicated art law blog by Boodle Hatfield LLP. Many thanks for permission to reprint.

A Salutary Warning to the Expert An expert has been sent to prison for giving false evidence to the court. The case offers a salutary lesson Liverpool Victoria Insurance Co Ltd v Zafar [2019] EWCA Civ 392.

The ultimate decision in the case will be taken by the judge (or the jury if there is one) but the evidence of the expert can be critical, virtually decisive, e.g. an engineer in a construction case, or a doctor in a personal injuries case. A false report can undermine justice.

The claimant was involved in a motor accident. His solicitor instructed the expert to prepare a report on the injuries. The expert saw the claimant briefly, and made a written report. The injuries were said to be minor. The claimant and the solicitor were dissatisfied, the expert was asked to alter the report, to magnify the injuries. The expert got a member of his staff to produce a second report, in which the injuries were indeed said to be much more serious. Only the second report was disclosed to the defendants, no mention was made of the first report.

If a genuine error emerges then the expert should immediately rectify that error, but give a full explanation, and ensure that everybody involved is promptly informed. However, as a general working principle the expert should refuse to alter or amend or change his report, his honest and careful report. The consequences of a dishonest or reckless report can be grievous for the expert. Not only will he suffer shame and ruin to his professional reputation and practice, but he will almost certainly receive a prison sentence, which will not be suspended. Persisting in dishonest or reckless behaviour, or giving a false explanation, or seeking to blame a third party, will be aggravating factors.

As every expert knows, he must comply with the Civil Procedure Rules part 35, and his report must contain a statement of truth. As every expert knows, his overriding duty is to the court. He must be honest, careful, objective, impartial, independent, transparent. To put it another way, every expert knows that he must not be dishonest, or corrupt, or false, or reckless, or misleading, or in breach of trust, or motivated by personal or financial gain. EXPERT WITNESS JOURNAL

That statement of truth must indeed be true! © Alec Samuels

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OGT Forensic Ltd Dr John Douse

(BA, MA, D.Phil (Oxford), FRSC, FCSFS, F ChromSoc, MEWI, MIExpE)

Independent Forensic Expert Witness Services OGT Forensic Ltd provides Forensic Chemistry expert witness services to solicitors and private companies, including provision of laboratory analysis, in the following fields: • TOXICOLOGY (Including Insulin, Alcohol and Ricin) • DRUGS (Including New Psychoactive Substances) • EXPLOSIVES (Including practical experience in IEDS) • INCENDIARIES (Including pyrotechnics and fireworks) • GUNSHOT RESIDUE (Including Organic Residue) • DNA TRACES (Including significance, transfer and QC) • FORENSIC CHEMISTRY (Including Chemical Weapons, Illegal Labs, Counterfeit drugs, Security Dyes, accelerants). We have unrivalled expertise and in house experience,involving pioneering research, casework and court experience in these fields.Legal Aid work and enquiries from Solicitors, Companies and Private Individuals are welcome.

Contact: Tel: 07766 286 001 E-mail: drjohndouse2@btinternet.com Web:www.forensic-expert.org OGT Forensic Ltd - Taunton, Somerset TA4 4ZN

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Singapore’s MinLaw launches Public Consultation on Amendments to International Arbitration Act This article is produced by CMS Holborn Asia, a Formal Law Alliance between CMS Singapore and Holborn Law LLC. In June 2019, Singapore’s Ministry of Law (“MinLaw”) announced that it will be holding a public consultation on certain proposed amendments to the International Arbitration Act (Cap. 143A) (the “IAA”). This follows a written response provided on 1 April 2019 to a parliamentary question on whether MinLaw would consider reviewing the IAA to provide an avenue of appeal in relation to errors of law in arbitral awards.

4. Allowing parties to appeal to the High Court on a question of law in an award based on an opt-in mechanism Currently, parties may only apply to the High Court to set aside an arbitral award on relatively limited grounds only – that is, on the grounds of fraud or corruption in the making of the award, or where there is a breach of the rules of natural justice, or where an award is in contravention of Singapore’s public policy.

We summarise the proposed amendments to the IAA – including 2 proposals from third parties – and provide brief comments.

The proposed amendment introduces an opt-in mechanism for parties to incorporate a right for them to appeal to the High Court on a question of law arising out of an arbitral award. This allows parties who prefer greater court supervision on issues of law to make a deliberate choice for curial supervision of such a nature. Parties who prefer the arbitral tribunal to have the final say on matters of law will remain unaffected as they can simply elect not to opt in to this new mechanism.

1. Introducing a default mode of appointment of arbitrators in multi-party situations Under the current IAA, the mode of appointment of arbitrators only applies to situations where there are two parties to the arbitration agreement. As multiparty arbitrations become increasingly more common, the proposed amendments provides for guidance under the IAA on the mode of appointment of arbitrators in multi-party cases.

Apart from the 4 amendments proposed by MinLaw, 2 other third party proposals are up for consideration.

2. Allowing parties to, by agreement, request the arbitral tribunal to decide on jurisdiction at a preliminary stage At present, the IAA permits the arbitral tribunal to decide on the issue of jurisdiction either at a preliminary stage or when making the final award. The proposed amendment enables parties to jointly request the tribunal to decide on the issue of jurisdiction at a preliminary stage so that parties can enjoy savings in time and costs.

5. Allowing parties to agree to waive or limit the annulment grounds under the Model Law and the IAA This is the mirror image of the 4th proposal above. Instead of broadening the grounds for setting aside an award, it seeks to further limit these grounds by giving parties the option to limit or waive, by agreement, the annulment grounds set out in section 24(b) of the IAA and article 34(2)(a) of the UNCITRAL Model Law (“Model Law”). Such an agreement can only be made after the award has been rendered.

3. Recognising that an arbitral tribunal and the High Court have powers to enforce obligations of confidentiality in an arbitration Confidentiality is one of the key features of arbitration. At present, parties and the tribunal have a duty of confidentiality under common law not to disclose confidential information obtained in the course of proceedings or to use them for any purpose other than in respect of the dispute. Most major arbitral institutions also have rules expressly providing for confidentiality in relation to all matters surrounding an arbitration. The proposed amendment to the IAA gives explicit recognition to the powers of the Court and the arbitral tribunal to enforce these duties of obligation.

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6. Allowing the Court to have the power to order costs in certain arbitral proceedings Presently, the High Court has no power to make an order on costs in respect of arbitral proceedings where an award has been set aside. This is problematic because the tribunal would usually be functus officio in such cases and will not be able to make any further orders on costs. The proposal considers whether legislative amendments should be introduced to empower the High Court to make an order on costs after a successful application to set aside an award. The proposal also considers whether similar amendments should be made to the domestic Arbitration Act (Cap. 10). 8

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The proposal to allow the Court to make an order on costs in respect of arbitral proceedings where there has been a successful setting aside application is sensible and timely. Section 10(7) of the IAA already empowers the Court to make orders as to costs in respect of jurisdictional challenges, so there is no reason why such powers should not be extended to cases where the Court set asides an arbitral award.

Comment In the past decade, Singapore’s popularity as an arbitral seat has gone from strength to strength. The authoritative Queen Mary University of London’s 2018 International Arbitration Survey ranked Singapore as the third most preferred seat and the Singapore International Arbitration Centre as the third most preferred arbitral institution in the world. The proposed IAA amendments represent MinLaw’s continued efforts to promote Singapore as a global dispute resolution hub of choice for savvy and well-connected commercial parties.

Authors Wei Ming Tan Senior Associate, Singapore +65 9636 0156 weiming.tan@cms-holbornasia.com

The proposal to give parties the power to appeal to the High Court against errors of law in an award is eye-catching. The opt-in mechanism is an important touch as it mitigates against potential criticism that the Singapore courts are seeking greater curial intervention in arbitral proceedings. Party autonomy is preserved as parties are at liberty not to incorporate this option to their arbitral proceedings if preferred.

Pradeep Nair Associate, Singapore +65 91286619 pradeep.nair@cms-holbornasia.com Lakshanthi Fernando Managing Director, Singapore +65 9648 9008 lakshanthi.fernando@cms-holbornasia.com

Conversely, parties that prefer minimal curial intervention to arbitral proceedings will welcome the proposal to limit the grounds for annulling an award under section 24(b) of the IAA and article 34(2)(a) of the Model Law.

Need an expert visit www.expertwitness.co.uk Mr J W Rodney Peyton OBE TD Consultant in Trauma and General Surgery BSc(Hons) MSc(Educ) MD FRCS(Eng, Ed, Glasg & I) FRCP(Lond) PGDL

Put Mr Peyton’s 30+ years and 70,000+ cases to work for you in order to significantly improve chances of favourable outcomes Mr Rodney Peyton is internationally highly regarded as an accomplished consultant trauma surgeon, author, speaker and trainer with a longstanding commitment to surgical education. Mr Peyton has been involved in medico-legal reporting and court appearances as an expert witness for 30+ years and is a Foundation Member of the Expert Witness Institute. Over the last five years Mr Peyton has seen a minimum of 1,000 cases per annum including personal injury, RSI and medical negligence. • • • • •

Medico Legal Services – expert opinion provided in more than 70,000 medico legal cases Medical Negligence – independent opinion provided in cases in the UK, Ireland and internationally Reviews to promote improvement of clinical practice Facilitative Mediator in disputes involving medical negligence and Private Finance Initiatives Author of “Whiplash, The Cervical Spine in Medico Legal Practice”, “Facilitative Mediation” and Co-author of the “Cambridge Textbook of Accident and Emergency Medicine.”

Contact Mr Peyton today to assist your clients, legal advisors and the Courts to gain a clearer understanding of the unique aspects of medical evidence in individual cases, so that they can make better informed decisions.’

Contact Details: Beechlyn Court, Ballynorthland Park, Dungannon, Northern Ireland BT71 6DY Tel: +44 (0) 28 8772 4177 Email: rpeyton@rpeyton.com - Website: www.jwrodneypeyton.com EXPERT WITNESS JOURNAL

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Competition for Commercial Disputes Around the World At the moment the political and legal commentators in the UK are fixated on Brexit. And no wonder. In only a few weeks the UK could see the biggest political and legal in generations. In the midst of that change, many have questioned the future role for London as a hub for international disputes. Differences between arbitration and litigation One preliminary question is the difference between a jurisdiction as a centre for litigation (so state endorsed dispute resolution) and as a centre for arbitration. Typically these are seen as very different creatures.

robust disclosure obligations, others will be highlight the significant cost that this generates. The working language is also attractive as it is, for now, one of the most common languages in global business. International litigation hubs

So: u Arbitration is seen as quick, whereas litigation is not; u Arbitration is confidential, whereas litigation is not; u Arbitration is flexible, whereas litigation is not; u Arbitration is inexpensive, whereas litigation is not u Arbitration allows you to choose your decision maker, with litigation you cannot. u Arbitration awards can be enforced internationally, where with litigation this can be more difficult.

Look at the new international hubs being opened, and an obvious feature is that the cases can be conducted in English. The flexibility of procedures is highlighted. And increasingly the dispute resolution hubs are seeking to increase their attractiveness by building state of the art technology centres so that costs can be driven down and speed of process increased. These features all seem to reflect an approach that if they are to compete with established hubs such as London or New York then they need to be as good as, if not better than, London and New York when it comes to such things as the quality of judges, independence, efficiency and cost.

In reality, these distinguishing features have become blurred. An arbitration involving an international commercial dispute can be time consuming, follow court like procedures and be very expensive. Courts, in contrast, are keen to point to the flexibility of their procedures, and their focus on resolving disputes in way that is “proportionate” to the nature or value of the dispute.

Pamela Bookman, in her detailed paper entitled “The Adjudication Business” points out that some see this not as a competition between courts, but rather a competition between countries. To compete globally for investment, countries need an effective system for resolving commercial disputes. The rationale is that companies investing into a country need to be comfortable that their investment will be protected by the rule of law, and problems will be resolved fairly.

The English courts have clear rules on proportionality of costs. In accordance with CPR 44.3(2), the court will only allow costs which are proportionate to the matters in issue and will disallow costs which are disproportionate in amount even if they were reasonably or necessarily incurred. Any doubt as to whether costs were proportionately incurred, or are proportionate in amount, will be resolved in favour of the Claimant as paying party. In Arjomandkhah v Nasrouallahi [2018] EWHC B11 (Costs) the judge was clear that he had have regard to all the circumstances in deciding whether costs were proportionately incurred and proportionate in amount, not just the value of the claim.

On one view the creation of these commercial courts is part of the ebb and flow between arbitration and litigation. As arbitration increases in popularity and adopts new processes and technology, so courts respond and do the same. National courts then seek to sell their new streamlined processes, and lure parties away from arbitration. At a policy level however, there should be a continual focus on improving the national court structure in any jurisdiction, if for no other reason than the courts are the only forum that will publicly state what the law is and how it applies in any given situation. That that public statement allows the lawyers and clients to learn and adapt when conducting their business.

London, for decades, has been a hub for international disputes, along with New York. The London Commercial Court was set up in 1895 and developed a reputation for excellent judges, sophisticated business knowledge, independence and respect for the rule of law. While some will point to the attraction of

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Article by John MacKenzie, Partner, Shepherd and Wedderburn LLP

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Drug and Toxicology Experts with over 40 years’ medico-legal experience supported by a fully accredited laboratory in the UK.

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Complex Drug Patent Infringement Casework Legal Defence Criminal Work for Law Enforcement Post Mortem reporting for Coroners & Police Private Cases of Alleged Foul Play Drug Analysis Pharmacology Advice Clinical Trial Bioanalysis for Drug Discovery www.bioanalytics.co.uk info@bioanalytics.co.uk +44 (0) 20 8725 2845

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Subrogation

Advantages of a Protocol and Use of the Scientific Approach In Fire & Explosion Investigations by Larry Canary A little background is needed to place this important topic in proper context. Prior to 1992, Fire & Explosion investigations were more closely aligned with the art of Investigations, rather than actual science. Investigators relied on what they were taught by those revered in the fire investigation profession or through trial and error. Since 1992, the National Fire Protection Association (NFPA) published a document called NFPA 921 Guide for Fire & Explosion Investigations. A complimentary document to NFPA 921 was NFPA 1033, Standard for Professional Qualifications for Fire Investigator. Although both the afore mentioned documents are orchestrated by the United States, they are internationally accepted in many locations and seen as a Best Practice document. To place a finer point on these documents being internationally accepted, The Institute of Fire Engineering in the UK and the Fire Service College, referenced as recommended reading NFPA 921 and 1033 as part of their Level 5 Award in Fire Investigation, dated 10 August 2017. Level 5 Award in Fire Investigations, a more advanced version from Level 2, was designed for fire officers, scenes of crimes officers and others involved in investigating and reporting on incidents involving fires.

Explosion investigators to utilise a protocol basis for their investigations. Nevertheless, that was not the only impact – NFPA 1033 identified 13 different and specific knowledge requirements to maintain above the high school level. Then in the 2014 edition of NFPA 1033, the list of 13 knowledge-based topics grew to 16. NFPA 921 from 1992 to present has been revised through a consensus of industry professionals ranging from insurance, fire agencies, law enforcement and private/public fire investigators and many others. This document tells the professional how to properly perform their investigation in detail. NFPA 921 was not designed to be a comprehensive engineering or scientific text. What it was created for was to further eliminate what in the early days of Fire & Explosion Investigations was called junk science and provide “a systematic, working framework by which effective fire and explosion investigations and origin and cause analysis can be accomplished”. Now to present day…What does any of this have to do with Subrogation? LOTS! When a Fire Investigator is assigned to conduct a scene examination, wouldn’t it be comforting if you knew beyond doubt that your investigator was conducting a complete and thorough scene examination? NFPA 1033 sets forth the mandatory Job Performance Requirements (JPRs) which set up a specific protocol of performance requirements. Following this protocol ensures the investigator

NFPA 1033 has been around since 1977 in one form or another, but has only recently, since about 1987 had any real influence. In 2009, however, NFPA 1033 truly had a monumental impact and every publication of the document since that time has compounded on that impact. What is that monumental impact, the requirement for Fire &

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addresses all the issues associated with the investigation.

1033 and the guidance of NFPA 921 will be more prepared to provide a comprehensive, accurate, detailed account of their evidence and findings that are easily understood. The scientific method provides a road map for the investigator to follow and stay the course.

However, one may ask, okay, use the protocol, how? This is where NFPA 921 comes into play. It is a playbook of how to properly use the scientific method. This document is over 300 pages of scientific and engineering discussion compiled by many professionals in the fire & explosion profession with the intent to ensure all fire and explosion investigations are appropriately and scientifically conducted.

Subrogation can be challenging to navigate, but an investigator that followed NFPA 1033 and 921 will be able to provide a much more representative account in any litigation process and potentially position their client to prevail.

The scientific method is a 7 part system that when followed, ensures the investigative process is complete and defensible. Consider this…If the origin of the fire is inaccurately identified, then it is likely the cause will be equally misidentified. A client retains a professional fire & explosion investigator to obtain their independent opinion/conclusion. That opinion must be explained to an acceptable level of certainty to rise to the level of an expert opinion as determined by a judge.

The scientific method and the protocol is not smoke and mirrors, nor is it a mystery…It is designed that when used properly, it provides the “trier of fact” to accept the investigator as an expert, understand and be able to better apply the evidence submitted to the court. Lawrence L. Canary IFSAC-CFI, NAFI-CFEI, FCLS Vice President, Fire & Explosion in Richmond, Surrey Lawrence (Larry) Canary, IFSAC-CFI, CFEI, FCLS is the Vice President – West Region Manager of the Fire & Explosion Division of Envista Forensics. He has over 30 years of fire investigation experience and has personally conducted or supervised over 1,600 fire investigations globally. He holds degrees in Fire Science, Criminal Justice and Instructor of Technology & Military Science. He has testified as an expert in fire and explosion investigations in both state and military federal courts. Mr. Canary’s experience includes large/complex loss management and investigations that have involved long duration deployments and team responses.

“The goal of all investigators is to arrive at an accurate determination related to the origin, cause, fire spread, and responsibility for the incident.” Not following the protocol and scientific method sets up for a potential improper scene evaluation, analysis and documentation. As anyone associated with the insurance industry understands, subrogation is a chess match orchestrated by attorneys, with experts providing evidence and insurers with alleged “deep pockets”. A professional investigator that adhered to the standards of NFPA

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In Case You Wondered… How Case Law Informs Practice by Professor Hugh Koch, Clinical Psychologist and Visiting Professor to Birmingham City University The aim of this paper is to understand and learn from the cases reporting in BAILII or WestLaw and associated sources how psychological thinking is relevant.

Towards the Medico-Legal Commentary A group of clinical psychological psychologists experienced in conducting medico-legal psychological assessments in the UK typically in the area of personal injury and medical negligence litigation have developed a process by which psychological theory and practice can be considered and applied to the understanding of the psychological implications of legal case precedents, authorities and general descriptions of cases. (Koch,2016 a,b,).

Over the past three years (2016-19) we have published interesting cases in Tort Law (Koch, 2019) in Personal Injury Brief Update Law Journal (PIBULJ). This model of expert commentary is discussed in this paper. Case Law Analysis Many, if not all, civil cases have human/psychological/social aspects which provide a commentary of the legal activity in any one case. A comprehensive and in-depth perusal of UK Case Law reveals that many aspects of social and cognitive psychology pertain to the cases seen at any level of the court system (Fig. I)

This pilot study followed earlier publications of psycho-legal issues in 1999 and 2000 (R.V. Turner, 1999) when the author published two litigated cases, one criminal (covering somnambulism, the features of sleep walking and one civil case (Bishop v Doves PLC (2000)). The current study of 21 recent Tort Law cases has been based on a process which follows closely with the publication of a legal case, identified key psychological issues which are then discussed with reference to the appropriate research or publications.

Figure I.

2016 -2019 Legal Mind Care and Commentaries The complete 21 Legal Mind Case and Commentaries which have been researched and written during 2016 – 2019 and were published in Personal Injury Brief Update Law Journal (PIBULJ). They address key legal and medico-legal issues including: • Effects of sudden shock ‘But for’ test • Reasonableness and logicality of evidence • Plausibility in causation • Assessing dishonesty • Work stress identification • Regulating Expert Evidence • Opinion changing • Honesty or Dishonesty • Truth arbiter – Judge or Expert • Material Contribution to causation • Validity of Expert Evidence • Uncertainty in Judicial decision making • Joint Statements • Expert Impartiality • Post-cyber data breaches • Operationalising of truthfulness variables

There is considerable opportunity in different types of case law for psychological impact to be examined (Fig. II). Figure II.

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One specific case is summarised below: partialled out and differentiated from each other is of a less concern, at this moment of time. However, currently, what is of most concern is to ensure the knock on effects of data breach in terms of serious and significant adverse life events such as unemployment, relationship breakdown and relocation pressure are adequately assessed as well as the more obvious clinical injuries of depression and generalised anxiety (1, 2, 3).

Assessing distress post-cyber breaches [Koch HCH, Laraway A, Pelser C & Lamswood S 2018] This is the twentieth in a series of Case reports and Commentaries from Dr Koch and colleagues. Legal Mind Case and Commentary - No. 20 Case: A recent case involving data breaches is summarised below and debated.

The number of high-profile data breaches in the last few years has increased. The highest profile case this year being the Facebook and Cambridge Analytica data breach which affected up to 87 million people. How are psychological damages cases taken into account when there could be millions of people that could come forward in some cases due to the nature of the source the breach came from.

TLT and others vs. Secretary of State for the Home Department and the Home Office (2016) EWHC 2217 (QB) This case involved the publishing of family return statistics which, by error, included details of applications for asylum or leave to remain. Before the error was discovered, one unknown individual had downloaded and saved the spreadsheet.

How can causation be proven beyond reasonable doubt that it has had psychological damages to the person outside of the current context they were in? e.g. the stress of awaiting an asylum application and right to stay? These questions remain for further exploration and analysis.

One individual (TLT) was notified of this data breach involving his personal and status details. Areas of legal contention in this case involved whether TLT was subject to (proof of) distress and whether this crossed a threshold below which damages were not recoverable. The judge correctly took into account the assessment of damages in personal injury psychological cases, to ensure appropriate comparison. Although he did not necessarily define operationally what the threshold was, he opined that this approach of differentiation was appropriate in this case. He also took into account the claimant’s loss of control over his private and confidential information. The background to this case involved TLT, a citizen of Iran, who came to the UK on a visitor’s visa. The judge made a global award taking into account the circumstances and the ‘distress’ which he had experienced. The award was in line with equivalent awards in PI cases for moderate psychological and psychiatric damages. The award was not differentiated into parts.

In this example above, it can be clearly seen how the initial description and summary of the case with judgment from the Judge leads on to a psychological commentary concerning relevant psychological thinking. Reading, analysing and understanding legal reports is a crucial skill for legal professionals. In our opinion, there are three current areas of contemporary importance in legal case report analysis and interpretation: Expert evidence, evidential reliability and psychological injury (Koch and Reynolds, 2019). Expert Evidence Expert Evidence illustrated in cases in BAILII which have implications for Part 35-related issues for experts include: • Duty to restrict expert evidence • General requirement for expert evidence to be given in a written report • Written questions to experts • Instruction to a single joint expert • Contents of report

This summary is in line with the outcome of three other cases: 1) Burell v Clifford (016) EWHC (Ch) 2) Vidal-Hall, Hann and Bradshaw v Google Inc. (2016) EWCH 2217 (QB) 3) Gulati v GMC (2001) UKPC 22 (5.4.01) In each of these cases, there was debate about how to partial out contributing factors to the ‘distress’ experienced and concluded that one overall award for distress was appropriate.

Evidential Reliability Case Report analysis could also provide information and court experience of issues such as: • Veracity • Causation and material contribution • Partial dishonesty • Total dishonesty • Specific or cumulative threshold • Conscious or unconscious reliability • Estimating level of ‘abuse of process’ • Clarity of allegations of fraud • Levels of inference of dishonesty • Inconsistency of dishonesty

Commentary It is likely that during the next four years, the frequency of cyber crimes and breach cases will increase. At present, provided that the assessment of the psychological impact on individuals of the index crime or data breach is comprehensively made by the appropriate expert with experience of these types of cases, then whether the type or types of distress are

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ical theory and practice to it. By doing this, we aim to develop further a wider understanding of the interface and overlay between law and psychology.

Psychological Injury Case law should address issues pertaining to Psychological Injury and Law: • Causation • Eggshell skull rule • Duty of care • Proximity Test (time, space, relationship) • Presence/absence of physical injury • Pre-existing • Novus actus or continuous • Remoteness of damage • Mitigation of loss

References Exall G (2019) Civil Litigation Brief. Wordpress.com/2019/02/16 Koch H and Kevan T. Psychological injuries. XPL Press. St Albans. 2005. Koch H, Browne G and Medley A (2018). Expert Opinion Change in Joint Statement. Legal Mind Case and Commentary No. 19. Personal Injury Brief Update Law Journal, 2018. Koch HCH and Reynolds S (2019) Case Analysis in a medico-legal context: A unique emerging practice. Frontier Journal of Case Reports and Images. 1. Koch HCH (1999) RV Turner. Somnambulism. APIL 9, 3, 99. Koch HCH (2000) Chronic Pain Case Report. Doves v. Bailey. PMILL, 18-19. Koch HCH (2015) Evidential Reliability: a practical guide for lawyers. Special Report. Solicitors Journal Koch HCH (2016) (a) Legal Mind: Contemporary Issues in Psychological Injury & Law. Expert Witness Publications, Manchester. Koch HCH (2016) (b) Medico-legal case commentary: interface between clinical opinion and legal case reporting in personal injury litigation. Mathews Open Access Journal. April 2016. Koch HCH (2018) From Therapist’s Chair to Courtroom: Understanding Tort Law Psychology. LCB. Manchester. Koch HCH (2019) Legal Mind Case and Commentary. LCB Publishing Manchester Koch HCH, Bowe J, Strachan R and Day S (2018). Fundamental Dishonesty: Honest Claimants have nothing to worry about. Legal Mind Case and Commentary No. 18. PIBULJ. 3/18 Koch HCH, Laraway A, Pelser C and Lamswood S (2018). Assessing distress post-cyber breaches. Legal Mind Case and Commentary No. 20. Personal Injury Brief Update Law Journal, 2018. Koch HCH, Mushati D and Francis A (2019). To convince or deceive? The analysis of reliable and realistic evidence. Legal Mind Case and Commentary No. 21. Personal Injury Brief Update Law Journal, 2019. Payne J (2019) Truth or Lies. PI Focus. 4/19. PIBVLJ (2016 -2019) Legal Mind Care and Commentaries 1-21. UK. Wiki How (2019). How to research Care Law www.wikihow.com. Wikipedia (2016) Common Law (English). www.wikipedia.org.

Robust opinions need robust reasoning In the field of Case Report analysis, expert opinion can be operationalised in terms of a number of key postulates called Koch’s medico-legal postulates. These relate to the medico-legal contexts of injury analysis, expert evidence and evidential reliability. Below, in figure VI, is the first seven of these postulates (Koch, 2015). Figure VI. Koch’s medico-legal postulates I. A robust opinion should address diagnosis, causation and attribution, duration and prognosis. II. A robust opinion will include more than one type of evidence. An opinion based on claimant self-report only may still be valid but is a ‘weak’ opinion in medico legal terms. III. The classification/diagnostic categories given in Diagnostic and Statistical Manual of Mental Health Disorders (DSM) and the International Classification of Diseases are a part of a formulation of expert’s opinion – this systematic check of relevant criteria must be balanced by wider clinic judgement and contemporaneous records, if available. IV. The expert’s mental state examination should be consistent with the claimant’s description of currently active symptoms – a clear discrepancy reduces the robustness/strength of an opinion. V. Wherever possible, the claimant’s computerised GP attendance records should be made available to the expert. The subsequent analysis (i.e. evidence of or lack of corroborative data) will increase the strength or reliability of the opinion given.

Cases Bishop v. Doves PLC 2000 Burell v. Clifford (016) EWHC (Ch) Gulati v GMC (2001) UKPC 22 (5.4.01) R.V. Turner (Koch, 1999) Vidal-Hall, Hann and Bradshaw v Google Inc. (2016) EWCH 2217 (QB)

VI. A therapist who has already treated a claimant cannot provide an impartial or independent expert opinion on issues of diagnosis, causation, or prognosis for that claimant. VII. A robust opinion should include a history of factors which could, on the balance of probabilities, affect a specific index event reaction. It is our intention to develop this approach to case law analysis and understanding over the next few years via a closer inspection of recent case law and contribute to an expanded application of psychologEXPERT WITNESS JOURNAL

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The 5th Money Laundering Directive and Property Agency The UK, along with other EU member states has until January 2020 to implement the 5th Money Laundering Directive (5MLD). Provided the UK is either within the EU or is within and agreed transitional period it will be required to implement the Directive. If the UK has left then it may not be obliged to implement the Directive but will be under considerable pressure to do so. The 4th Money Laundering Directive considerably tightened the regime for estate agency but left lettings agency out of scope. 5MLD does not bring all lettings agency into the regime but does where the rent for the property is over â&#x201A;Ź10,000 per month. That is approximately ÂŁ8,650 at the time of writing. So very high value property rentals will oblige agents to carry out full money laundering checks on the landlord and tenant. For a small number of agents this will be a substantial new burden which will involve considerable extra effort as they will not only have to consider the identity of tenants (something they are already doing for Right to Rent purposes) but also consider the provenance of the funds being used to pay the rent as well as whether the tenant is a Politically Exposed Person (PEP) who might conceivably have obtained funds illicitly as a result of their position. This will be a considerable burden in the high-value property market where a significant number of tenants may be PEPs and may not be happy to discuss the source of their finances. Additionally, there will be considerable extra work for government and estate agents, again particularly in the higher end market, as 5MLD imposes substantial new obligations regarding trust relationships. 5MLD requires that any trust must have its beneficial owners identified and opens access to that information to any person with a legitimate interest. It is common for higher value property to be owned in the UK via a trust in order to disguise who the actual owners are. As much for reasons of privacy as anything else. However, those arrangements will not longer be as private as they once were once 5MLD comes into force and, looking at the widening of data about corporate ownership that is also part of 5MLD, there will be concern that trust beneficiary information will eventually be moved into the public domain.

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For many estate and letting agents the changes wrought by 5MLD will be of little interest to them. For a smaller number of agents the changes will increase their workload substantially and considering how to respond to the challenges is something that should begin now. Article by David Smith - Partner www.anthonygold.co.uk david_smith@anthonygold.co.uk A recognised expert in residential landlord and tenant law. Renowned for providing practical solutions to legal problems.

Hugh Koch Associates, established in 1993, provides a comprehensive and independent psychological and orthopaedic assessments service plus access to a psychological treatment service, throughout the UK. Hugh Koch Associates offer expert witness services including psychological, neuropsychological, orthopaedic, and pain Assessments. We offer a rapid assessment of specialists and experts throughout the UK who have been involved in one of the following situations: Personal Injury Types of situation: Road Traffic accidents (car, bike, lorry, pedestrian) Train Accidents (driver, passenger) Work Accidents Medical Accidents Assaults Emotional, Physical and Sexual Abuse Natural Disaster Accidents Refugee and Asylum Seeker Mental Health Problems Brain Injuries Work place stress (bullying, harassment, relationship conflict and workload-related) Health Issues (physical and psychological) including anxiety, depression, drug misuse and chronic pain In addition, we also provide psychological therapy carried out by experienced therapists using up to date treatment techniques such as Cognitive Behavioural Therapy. Telephone: 01242 263715 - Fax: 01242 528299 Email: enquiries@hughkochassociates.co.uk - Web: www.hughkochassociates.co.uk Head Office: Hugh Koch Associates LLP Ground Floor, Festival House, Jessop Avenue, Cheltenham, GL50 3SH

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CaseLines

A Question and Answer with CaseLines CaseLines is the world’s most comprehensive digital evidence management solution for national and local governments, and courts. Our platform allows legal teams to efficiently and securely prepare, collate, redact, share and present evidence/legal bundles, documentary and video evidence in a single system. Prosecutors, lawyers, barristers and judges in civil and public law cases use CaseLines globally, including in England, Wales, Kenya, Dubai and Abu Dhabi. The platform holds over 300,00 cases and over 100 million pages of evidence and we are now looking to gain a market presence in North America. for either the expert or a court clerk to drive the presentation of referred to evidence to the court. This results in a more efficient testimony, with the expert not being interrupted by delays whilst parties, judges and juries find the section or page in a paper bundle.

What areas of law do you cover e.g. family, civil, criminal? CaseLines is the only cloud-based evidence management platform that is used in criminal, civil and family law cases, as well as being used by the solicitor’s disciplinary tribunal, local governments and law firms.

What time savings does ‘digital evidence’ offer? CaseLines provides the latest legal technology to refine legal practices and drive efficiency in an increasingly overstretched system.

Local governments are under increasing pressures from diminishing budgets and ever-growing case demands, yet they still need to effectively deliver a range of services. In contrast, law firms are under increasing pressure from growing global competition and corporate insourcing. In both instances, CaseLines offers a reliable cost-effective solution that delivers secure storage, alongside facilitating collaboration both in and out of court. The complete evidence management platform can therefore be implemented across multiple areas of law.

Traditionally, hours are spent manually compiling and checking documents in evidence bundles before they go to court. This practice increases file preparation time and absorbs work hours that could be usefully employed elsewhere. With CaseLines, duplicate documents can be detected and removed at the click of a button. This means less wasted effort and more time to focus on the important work for a case, with users already reporting up to 95 per cent time savings.

How can CaseLines make an expert’s testimony easier? CaseLines can make an expert’s testimony easier by providing an easily searchable evidence management system to review key information anytime, anywhere. This means they can focus on their specialist subject rather than being distracted or caught up in the court proceedings.

Furthermore, CaseLines can help to reduce the number of hearings taken to court, meaning more cases can be heard quicker, easing delays in a saturated system. In fact, the UK Crown Court has seen a 50 per cent reduction in hearings due to earlier access to evidence resulting in defendants entering more early guilty pleas.

Moreover, many expert witnesses will work internationally. CaseLines offers them the ability to collaborate more effectively with lawyers across multiple countries and time zones. In fact, the system now enables experts to provide their testimony via secure video link directly into the courtroom, minimizing disruption to their everyday careers and removing the need to travel.

How long do you think it will be before’ digital evidence’ will be commonplace in most UK courts? The CaseLines system is already mandatory in all criminal courts across England and Wales and is an MoJ approved platform for use in all courtrooms. With greater awareness surrounding the added security, time saving and efficiency benefits that CaseLines provides, hopefully it won’t be long before tribunals, civil and family courts follow suit.

At the end of the day, expert witnesses are not lawyers and may not have previous experience of being called upon in a court environment. Therefore, any advancements which simplify courtroom proceedings will only work to help the process run more smoothly.

All the answers you need to the many challenges of evidence management Used in courts around the world, and widely endorsed by judges, CaseLines is the advanced cloud-collaboration solution that offers true digitisation. It is far superior to using unsecure, unconnected pdfs and eliminates the ever-rising cost of handling paper.

What training do you think that experts should undertake? The use of digital evidence management means that expert witnesses require minimal training to be able to be an effective subject matter expert in the court room. CaseLines offer’s the ability to create as many sub-bundles from the master evidence bundle, allowing an expert witness to be given access to only the evidence that they are required to refer to and present in court.

London office Belle House, Platform 1, Victoria Station Westminster, London, SW1V 1JT Phone: +44 (0)20 3922 0840 Website: www.caselines.com Offices also in Washington D.C., USA

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Singapore High Court Refuses to Set Aside Arbitral Award for Alleged Suppression of Evidence by Pradeep Nair, Associate, Singapore, Wei Ming Tan, Senior Associate, Singapore and Lakshanthi Fernando, Managing Director, Singapore. This article is produced by CMS Holborn Asia, a Formal Law Alliance between CMS Singapore and Holborn Law LLC. ply of Products (which it invited the Supplier to take part in).

Introduction Can an arbitral award be set aside on the grounds of fraud or breach of public policy on the basis that a successful party failed to call certain witnesses and/or failed disclose certain internal documents it did not consider relevant to the arbitration? This was the issue that confronted the Singapore High Court (the “Court”) in BVU v BVX [2019] SGHC 69.

The arbitration The Supplier commenced arbitration against the Purchaser claiming USD 2.25m in damages plus interest for various breaches of the Agreement among other requests for relief. Before the oral hearings for the arbitration took place, the Purchaser indicated that it would only call one factual witness and not three other individuals who the Supplier had identified in its Statement of Claim as being involved in the negotiations for the Agreement. The Supplier applied to the arbitral tribunal for an order that the Purchaser procure the attendance of these three individuals as witnesses in the arbitration but this application was not successful.

Background In response to spiralling food prices and growing concerns about scarcity, the South Korean government embarked on a project to secure long-term lines of food supply from international sources to supplement domestic food supply (the “Project”). The Defendant, a state-owned company, was appointed to spearhead the Project (the “Purchaser”). The Purchaser was introduced to the Plaintiff (the “Supplier”) which recommended that the Purchaser procure food from South America (the “Products”). After governmental approval was obtained, the Purchaser and Supplier formally entered into an agreement (the “Agreement”).

The hearing proceeded with the Purchaser calling its sole factual witness, who was not involved in negotiations leading to the Agreement but who was, at the time of the arbitration, responsible for the purchase and sale of the Products and for monitoring the performance of the Agreement with the Supplier. The Purchaser also called on two expert witnesses to give their opinions on comparative and Korean Law.

The material terms of the Agreement were as follows: E The Supplier shall be the Purchaser’s “most preferred Supplier”;

The award was subsequently issued in favour of the Purchaser by the majority of the tribunal with one dissenting opinion.

E The Agreement would commence on 1 October 2012 for a period of 20 years (or until terminated in accordance with the termination clause);

On the balance of the parties’ arguments, the majority concluded, amongst other things, that a reasonable person in the same circumstances as the parties would not expect that the Purchaser’s obligation to use “best commercially reasonable effort” to purchase Products under the Agreement would require the Purchaser to act in contravention of Korean public procurement law. The majority further considered that the Purchaser had satisfactorily discharged its obligations under the Agreement by calling a public tender and inviting the Supplier to participate.

E The Purchaser would use its “best commercially reasonable effort to order and purchase” the Products during the course of the Agreement in accordance with the forecast range which was defined to be a “[m]inimum of 1,000,000 tons in total per annum”; E The Agreement was to be governed by the “rules of the Vienna Convention on Contracts for the International Sale of Goods” and that disputes arising out of or in connection with the Agreement were to be finally settled by Singapore-seated arbitration in accordance with the ICC Rules.

While the majority found that the Purchaser was not in breach of the Agreement, the dissenting arbitrator held that adverse inferences ought to be drawn in respect of the Purchaser’s decision not to produce its employees who were involved in the contractual negotiations of the Agreement and that the Purchaser was in breach of the Agreement because the parties had not anticipated that purchases under the Agree-

A few months after the Agreement was signed, the Purchaser informed the Supplier that it had entered into a Memorandum of Understanding with one of the Supplier’s competitors. Subsequently the Purchaser provided the Supplier with a forecasted range that was well below the forecast range in the Agreement and began a public tender process for the supEXPERT WITNESS JOURNAL

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to give evidence in the arbitration. By the Purchaser’s own admission, the Witness’s purpose was “to further corroborate” factual allegations – suggesting that the Witness’s testimony was not material but at best cumulative.

ment would only be made by way of conducting public tenders. Post-award applications before the Singapore High Court After the award was issued, the Supplier’s Korean solicitors were able to reach out to one of the three witnesses who the Purchaser declined to call as a witness in the arbitration to give evidence in favour of the Supplier for the purpose of setting aside the Award (the “Witness”). The Supplier subsequently applied to the Court to set aside the award on the basis that as a result of the Purchaser’s failure to call the Witness to give evidence in the arbitration: (1) The award was induced or affected by fraud or corruption; and (2) The award is in conflict with the public policy of Singapore.

E In any event, it appeared to the Court that the Tribunal had invited submissions from the parties on whether certain witnesses (including the Witness) should be called to give evidence and ultimately decided that it would not direct the witnesses to give evidence. In the circumstances, it seemed to the Court that the Supplier had simply been unable to persuade the Tribunal to secure the attendance of the Witness, as opposed to a case where the Purchaser had fraudulently suppressed the Witness’s evidence. E There is no obligation to call a particular witness in international arbitration and the decision to take the risk of having an adverse inference drawn (in the event the decision is made not to call a witness) is part of the adversarial process and not unconscionable conduct.

The Supplier then procured the issuance of a subpoena to the Witness to disclose certain categories of documents, which were all essentially the Purchaser’s internal documents (the Witness was unable to disclose these documents without a subpoena as he was subject to confidentiality obligations as an employee of the Purchaser). The Purchaser applied for the subpoena to be set aside. The Court then directed that the applications for setting aside the Award and the subpoena be heard together.

The Supplier’s application to set aside the subpoena The Court noted that the threshold for setting aside a subpoena, which is not easily surmountable, was crossed in the present case. Given the Court’s observations on the setting aside application, it concluded that the documents sought via the subpoena were legally irrelevant and/or unnecessary for the determination of the setting aside application. The Court also held that the subpoena was an abuse of process as it was an attempt by the Supplier to reopen the arbitrated dispute though a backdoor appeal on the merits.

Decision The Supplier’s application to set aside the Award After a review of local cases, the Court observed that a high threshold had to be met for an award to be set aside for fraud or a contravention of public policy and that in order for the non-disclosure or suppression of evidence to warrant the setting aside of an award, three requirements have to be satisfied: E It must be shown that there is deliberate concealment aimed at deceiving the arbitral tribunal;

Comment E In reiterating the high threshold for the setting aside of an arbitral award, the Singapore Courts are once again reaffirming its support of party autonomy and finality in international arbitration.

E There must be a causative link between the deliberate concealment and the decision in favour of the concealing party; and

E This case highlights the different disclosure regimes under common law litigation and international arbitration and the different disclosure obligations a party is subject to under each adjudication mechanism.

E There must not have been a good reason for the non-disclosure. The Court ultimately found that the Supplier failed to make out all of the requirements above. We highlight the following key observations of the Court:

E Parties should be mindful of their potential future disclosure obligations when deciding on a particular dispute resolution mechanism in their contracts. Had this dispute been subject to the exclusive jurisdiction of the Singapore Courts, both parties would have been obliged to disclose all relevant and material documents, even documents detrimental to their case and helpful to their counterparty’s case.

E The disclosure obligations of a party in an arbitration are not as wide as those in common law jurisdiction court proceedings. In the latter case, there is a continuing obligation to disclose documents relevant and material to the case, including documents which have the potential to adversely affect the party’s own case or support the counterparty’s case. E Under the IBA Rules on the Taking of Evidence in International Arbitration (which governed the procedural aspects of the arbitration), the Purchaser was not under a general obligation to produce all documents that could be relevant and material to its case or to call particular witnesses unless it was seeking to rely on his or her testimony.

E If the parties to a Singapore seated arbitration have concerns about the production of documents, they should seek curial assistance as soon as possible and while the arbitration is ongoing (under section 13 of the International Arbitration Act) as opposed to waiting until the outcome of the arbitration. The latter approach is likely to be perceived – as it was in this case – as an attempt to re-arbitrate the merits of the substantive dispute.

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Criminal Liability For Medical Negligence by Dr. Hassan Elhais The pith of criminal law depends on two elements Actus Reus and Mens Rea derived from the legal maxim "actus non facit reum nisi mens sit rea" which means no act is punishable without a guilty mind. The examination of a mental component essential for wrongdoing will be limited with reference to the utilization of this term itself, in so far as it connotes the mental component important to convict for any wrongdoing, and just in regards to violations not based on negligent behaviour.

the public prosecutor and the defence submitted by the accused. Court's utmost focus is to achieve an obvious result on the basis of the evidence presented to either convict the accused of the criminal act or acquit him due to insufficient evidence to prove his guilt. In this article, we will exhibit how the courts in the UAE at the diverse dimensions have approached and investigated the moral component of intent through various decisions of the Supreme Court.

A bare review of the laws manifests that it is easy to determine the criminal intent of a person as he is always aware of acts and the consequences attached to it, yet it is one of the difficult tasks before the criminal court, depending upon varying circumstances of the case. The major difference between criminal intent and negligence, as understood by best Criminal Lawyers in Dubai, remains in the fact that whether or not the accused was in his state of mind to understand the consequences of the act he is committing.

The Supreme Court has through Cassation Court Case Number 478 of 2016 provided factors to establish or set aside the criminal intent which includes merits of the case, evidence produced before the court, circumstances and the precedents. The foregoing case determined the criminal intent while escaping the police custody. Supreme Court further held that in crime for desertion, the accused fulfils the moral element of criminal intent when he tried to escape from police custody. The happening of an event or the distance he travelled is irrelevant as long as the intention to do a crime is established.

The intention of the Law The Federal Law Number 3 of 1987 concerned the UAE Penal Code (the Code) provides for the basis of criminal intention. According to the Code under Article 38 the essence of a criminal act lies in the intent or mistake. Accordingly, the intent is based on three further elements which are knowledge, foresight and desire. Wherein, the knowledge in such circumstances known as actus reus or the act itself, foresight means the awareness of the consequences of such act under the law and desire leads to the outcome of such act.

The knowledge of possessing narcotics drugs establishes the very criminal intent which was deduced from Court of Cassation Case Number 274 of 2016, wherein the court held that the criminal intent would exist if the accused was aware of the substances in possession. It is the right of the court to draw a nexus between the occurrence of an act along with the criminal intent on the basis of evidence and investigation by the prosecutor.

Whereas, any act will be considered as a mistake if it was committed with sheer recklessness, negligence, non-observance of law, and carelessness. The Code has vested discretionary powers in criminal judges and prosecutors to determine the criminal intent by conducting comprehensive and intense interrogations from which they may conclude the guilt of the accused. On the contrary to the foregoing, a criminal judge is not bound by the evidence produced by the public prosecutor, he may take an altogether different path and dismiss the case.

Another landmark judgement assisting us to understand the factors affecting criminal intent and varied opinion of criminal court judges is Cassation Court Case Number 730 of 2005. In the said case, the crime for misappropriation of funds or fraud by a public servant most definitely involves a criminal intent along with an intention to squandering funds of the government as claimed by the public prosecutor. However, the defendant pleaded not guilty and argued on the basis of lack of moral intent, and no damage was caused to the funds. The Court of First Instance opined that the combined acts of all the defendants portray a moral unity which brought them together to commit such act. Along with moral unity, both the accused were informed about the consequences and the outcome of the criminal act. The court of Appeal supported the same opinion. However, the Supreme Court set aside the order passed by

Criminal Intent and Judicial Interpretation of UAE courts Criminal judges, contingent on the courts, hold wide discretionary powers while passing a decision on a particular criminal case. Fundamentally, they frame their own beliefs while determine the element of criminal intent and asses the evidence presented by EXPERT WITNESS JOURNAL

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Copyright ÂŠ of this article is retained by the author and/or other copyright owners. We explicitly grant you permission to download a copy, without any alteration, of this article for personal non-commercial research or study, without prior permission or any charge. This article can be utilized on your website or for marketing, however, we grant you permission to host this article on your website and no other rights. This content should not be altered in any way or sold commercially in any format without prior permission of the copyright holder. During reference of this article, full biographic details entailing the name of the author, his designation, the institute and the publishing date of the article shall be provided.

First Instance and the appeal and ordered for a retrial before a different bench of the Appeal court. The Court of Appeal had a disparate opinion and held that accused were not guilty of the offence as the elements of criminal intent were not satisfied. The matter again referred to the Supreme Court where they confirmed the criminal intent of the accused. The court held that implementation of specific contracts to avoid the lawful procedure built the very basis of criminal intent. It Concludes that The aforementioned precedents simplified by Criminal Lawyers in Dubai assisted the courts and the public prosecutor in analyzing the merits, evidence and the circumstances of the case in such a manner which highlights the mens rea along with actus reus. However, the evaluation or analysis may still vary depending upon the discretion and understanding of the criminal court in such circumstances.

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Contact: Dr. Hassan Elhais Dubai: +971 4 355 8000 Abu Dhabi: +971 2 650 1211 www.professionallawyer.me/ August 05, 2019

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Quantifying the Financial Effects of Termination Practical Considerations by Michael Berrigan, Associate Director, Dubai, HKA INTRODUCTION Most standard form construction contracts contain provisions under which the employer can terminate the contractor’s employment for default. Default of the contractor can arise for several reasons. The events that entitle the employer to terminate should be clearly set out within the contract.

terms it raises a few commercial considerations for the Assessor:

Notwithstanding the reasons for termination, quantifying the financial effects and the monies due to, or from, a party can be problematic, which may lead to disputes and the expenditure of additional monies to expedite recovery.1

Sub-Clause 3.7 encourages the parties to consult in order to agree the valuation. As part of the consultation process, the parties may jointly or independently employ the expertise of quantity surveyors3 to undertake or assist in preparing the valuation. If the parties are unable to agree the valuation, the engineer must issue a determination within the prescribed time limits.

”the Engineer under Sub-Clause 3.7…shall proceed to agree or determine the value of the Permanent Works, Goods and Contractor’s Documents and other sums due to the Contractor for work executed in accordance with the Contract…”.

The purpose of this article is to identify some of the basic principles to consider when quantifying the effects of termination, either as the engineer, the parties to a contract or as a third party (collectively hereinafter referred to as the “Assessor”). Reference is made to the termination provisions of the FIDIC Red Book 2017 (“Red Book”),2 however this article intends to identify principles that can be adopted generally.

Undertaking the valuation It is important to recognise that the valuation is to be a gross valuation in accordance with the terms of the contract. The valuation may be calculated as the aggregate of items ‘a)’ to ‘c)’ below, less the actual monies paid to the contractor, including a provision for any outstanding monies to be recovered for advance payments as follows:

TERMINATION FOR CONTRACTOR DEFAULT (Sub Clause 15.2) Following termination of the contractor’s employment for default, the employer has a contractual remedy to complete the works and/ or arrange others to do so. The employer may use any goods (which may include the contractor’s equipment, materials, plant and temporary works) and the contractor’s documents to complete the works. The contractor is required to comply with any reasonable instruction from the employer, for the assignment of any subcontract; and for the protection of life or property, for the safety of the works. Any employer supplied materials and/or equipment should be made available to the employer, if provided to the contractor.

a) Permanent Works and Variations; b) plus, Materials/Plant on site or delivered to the engineer; c) plus, Claims; and d) less, monies paid to the contractor and any balance of advance payment(s) owing to the employer. The process of preparing a valuation of the Permanent Works and Variations, should be one based on factual evidence, as far as reasonably possible. It is essential that the Assessor and/or the parties visit the site as soon as the termination becomes effective, in order to sufficiently record the as-built status of the works4. Valuation can be more difficult under lump sum contracts, typically when elements of the works are partially complete and the contract does not include a mechanism for valuation, for example, the absence of a schedule of rates or a bill of quantities.5 Some standard form contracts contain provisions which allow for a valuation to be based on a reasonable amount.

The employer may suspend payment until any additional costs, losses or damages that flow from the termination, are ascertained. VALUATION AFTER TERMINATION (Sub Clause 15.3) It is of upmost importance that a valuation of the works is carried out at the date of termination (“DOT”). The valuation shall form the basis of calculating any monies owed to, or from, the contractor and will inevitably form the basis of determining the balance scope of works to be completed.

Consideration may need to be given to the valuation of Permanent Works that are considered defective. The Red Book states that the valuation “shall not include the value of any Permanent Works to the extent that they do

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not comply with the Contract.” 6 In practice however, if it is the employer’s intention to suspend payment to the contractor until any additional costs are ascertained, it may be practical to include the full value of the Permanent Works and set-off any costs for remedying defects once established.7

losses or damages, associated with the completion of the works have been established. The employer may be entitled to set-off the following from the monies owed to the contractor: 1) Additional costs of executing the works; 2) Other costs reasonably incurred including the employer’s losses and/or damages; and

The valuation of Preliminaries may be more subjective. Consideration should be given to the valuation of fixed lump sum items.8 For example, it may be that the contract price includes a lump sum for design. The Assessor may need to review the scope of the contractor’s design and make a valuation, taking into consideration the progress of the design and the production of deliverables at the DOT. A simple prorata of the allowance(s) contained within the contract price may not generate an accurate valuation. Further consideration may also need to be given in instances where the contractor has caused critical delay to the project. It may be necessary to abate the valuation of preliminaries to reflect the same period of delay caused by the contractor.

3) Delay damages. Additional costs of executing the works After termination of the contractor (“Contractor A”), the employer may choose to appoint a replacement contractor (“Contractor B”), to complete the works. Ideally, the tender for the completion works should be competitive, inclusive of free issue material and/or plant left on site or in the possession of the engineer at the DOT. Provisions may also be made for the use of Contractor A’s equipment and/or temporary works if retained by the employer. It is important to remember that the employer is only entitled to recover the extra over costs of completing the works. When re-tendering the completion works, it is highly unlikely that the final scope of the works can be determined, and inevitably there may be further variations to be issued up to completion. To calculate the extra over costs, it is important that the Assessor recognises that the final account for Contractor A is still ongoing and should be compared to the final account of Contractor B for the same works at completion. For example, under the terms of the Red Book, the contract price may be subject to adjustments, including changes to items and/or quantities.10 The Assessor should prepare a final account for both contractor’s up to the completion of the works, referred to by the RICS as a notional final account.11 Any additional costs incurred as a result of completing the works with Contractor B can be set-off from any monies due to Contractor A under Sub-Clause 15.3.

The valuation should also recognise the value of any Materials and/or Plant intended to form part of the works, either on or off site. There are several legal issues to consider in this context such as ownership, possession and retention of title. The first step is always to check the terms of the contract. Most contracts provide that title passes when (i) they are delivered to site; or (ii) when the value of goods have been included within an interim payment. Under the provisions of the Red Book, the contractor must deliver to the engineer, any materials and/or plant required by the employer at the DOT. These may be goods ordered, but not yet delivered to the site. It may require a reasonable period to pass to allow for such items to be delivered to the engineer. Nevertheless, the valuation should include all the items in the possession of the engineer and on site. The contract may identify the value for each item, in the absence of this, it is unclear how the Assessor is to value the goods. One approach may be to value the goods on a cost-plus basis, inclusive of all reasonably incurred costs such as mobilisation. The contractor should present satisfactory records for such goods, including purchase orders, receipts, proof of shipping costs etc.9

Difficulties may arise when valuing variations for works that are dissimilar to the works contained within Contractor A’s contract. In such instances, it may be reasonable to value the varied works taking into account all of the information contained within Contractor A’s contract, as far as reasonably possible, for example, labour constants, labour rates, rates for overheads and profit etc. and apply that information to current market rates and prices for the varied works.

The value of all Claims determined by the engineer up to the DOT, should also be included within the gross valuation. Deducted from the gross valuation should be the monies already paid to the contractor and the amount, if any, not yet recovered from any advance payment made by the employer to the contractor. The calculation will determine the amount owed to or from the contractor under Sub-Clause 15.3.

All other costs reasonably incurred and the employer’s losses & damages Most certainly the employer will incur further costs, losses and damages in connection with the completion of the works. A general list of items that the employer may be entitled to set-off from Contractor A are set out below: 1) The cost of making good defects to Contractor A’s works – The completion contract should distinguish between the completion works and making good of defects. If the full value of the defects is to be claimed

PAYMENT AFTER TERMINATION (Sub Clause 15.4) The employer may withhold the payment of any monies owed to the contractor as agreed or determined under Sub-Clause 15.3, until all the costs, EXPERT WITNESS JOURNAL

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in the employer’s set-off, then the valuation for Contractor A at termination must include the full value of the same items of work, as if they were in accordance with the contract.

Reasonableness of additional costs, losses and damages The employer may only set-off additional costs, losses or damages, reasonably incurred as a result of the termination. Whether costs incurred are reasonable involves detailed enquiries such as whether the procurement process was appropriate for the works procured, or whether the contract terms were reasonable.

2) Interim costs such as making the site safe, additional insurances, the employment of security and the removal of redundant items. 3) Costs of procuring the completion works, quantity surveyor’s fees, additional in-house resource, surveys and the employment of other third parties.

Disputes can arise in relation to the reasonableness of the rates and prices procured for Contractor B, which are often more than Contractor A’s. It is important to consider a few issues in this respect.

4) Any legal fees incurred as a result of termination, for example the drawing up of new contracts for the completion works and the assignment and novation of materials suppliers and sub-contractors etc.

It’s not necessarily correct to compare the tender for the original works with the tender for the completion works because, for example, Contractor A may have underestimated the project. Further, a reasonable price at any point in time will, to a large extent, be dictated by market forces, and, given that the tender for the completion works will inevitably be carried out later than the original works, varied market conditions may prevail. Issues may also arise if the employer procures Contractor B and its tender is not the most competitive.

This list is not exhaustive and depends on the relevant contract in use and the applicable law. Items available in one jurisdiction may be considered too remote in other jurisdictions. There are also items which may be caught by the term consequential losses, and a contract may exclude recovery of such items,12 these may include loss of profit, loss of rent, interest/financial charges etc. Delay damages The employer may be entitled to set-off delay damages related to the late completion of the works. The basis on which the damages are calculated will depend upon the wording of the contract. 13

Whether a price is reasonable is a different consideration from whether a price is the lowest price possible. It is important to keep in mind that a reasonable price requires to be appropriate and fair in the circumstances. A price that is so low, that it is insufficient to carry out the works to the required quality and within the required timescales, may not be a reasonable price. Other factors such as the inefficient nature of the works, or the complexities which arise in completing works commenced by another party, should also be considered.

One issue to be considered is whether a delay damages clause can be applied up to and beyond the DOT. The issue was recently considered by the Court of Appeal in Triple Point Technology Inc (“TPT”) v PTT Public Company Ltd (“PTT”) [2019] EWCA civ 230. In this case, TPT was liable to pay delay damages ‘up to the date PTT accepts such work’. The project had 3 milestones; stages 1 and 2 were successfully handed over by TPT, however PTT terminated the contract prior to the completion of stage 3. At this point in time the project was in delay.

SUMMARY This article sets out a small sample of the issues which may need to be considered when quantifying the financial effects of termination. Parties are encouraged to be mindful of the termination provisions contained within their contracts. Quite often, parties fail to recognise the termination provisions, and therefore, incorrectly value any further payment in accordance with the terms of the contractual payment mechanism. These terms tend to differ somewhat to the party’s entitlements under the termination provisions.

One of the issues raised in court was whether PTT was entitled to rely upon the delay damages clause, and, if so, whether the delay damages accrued up to the DOT, or beyond. It was found that PTT was entitled to rely upon the clause, calculated up to the date of completion for stages 1 and 2. However, for stage 3 the clause was found to be inapplicable. The contract stated that delay damages were to be applied ‘up to the date PTT accepts such work’, and therefore the clause could only apply to complete stages of work at the DOT. For incomplete works, PTT was entitled to recover damages at large, up to the date that the works were complete, subject to the necessary burden of proof.

References 1, Through a formal dispute resolution process. 2, FIDIC Red Book 2017, assuming that termination is lawful and the Contract survives termination. 3, Or any other type of surveyor / consultant that may assist in agreeing the as-built status of the works. 4, Records may include; photographic / video evidence, witness statements, marked up drawings, surveys and the like.

Although the Courts stressed that the outcome in each case would depend on the exact wording used, it also doubted recent cases which have held that predetermined delay damages continue post-termination, until the works are completed by the employer or the replacement contractor. 14 EXPERT WITNESS JOURNAL

5, The parties are encouraged to give due consideration to similar matters at contract formation. 6, FIDIC Red Book, Clause 15.3, Valuation after Termination for Contractor’s Default. 26

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7, Set-off made in accordance with Sub-Clause 15.4 8, Fixed priced preliminaries are items which are independent of duration. 9, Sub-Clause 14.5, Plant and Materials intended for the Works. 10, FIDIC Red Book 2017, Sub-Clause 14.1, Contract Price. 11, For further guidance, refer to the RICS Professional Guidance, UK ‘Termination of Contract, Corporate Recovery and Insolvency’. 12, FIDIC Red Book 2017 addresses consequential losses at Sub-Clause 1.15, Limitation of Liability. Such clauses are also commonly referred to as ‘Consequential loss exclusion clauses.’

the past 6 years working in the dispute resolution sector in the Middle East, Africa and Asia.

13, Triple Point Technology, Inc v PTT Public Company Ltd [2019] EWCA Civ 230.

Michael has been involved in the preparation of claims and has assisted quantum experts in the preparation of expert reports for matters in dispute adjudication boards and arbitration. Michael has worked on a wide range of international projects including high-rise buildings, infrastructure works, airports, power stations and oil and gas facilities.

14, Hogan Lovells, Talking Point: Construction and Engineering, May 2019, ‘Where work is never completed, delay liquidated damages may not accrue up to termination.’

HKA is one of the world’s leading providers of consulting, expert and advisory services for the construction and engineering industry. For over four decades we’ve stood alongside our clients as trusted independent advisers, finding solutions amid uncertainty, dispute and overrun.

Michael holds a BSc in Quantity Surveying and Commercial Management from Bolton University, UK and an LLM in Construction Law and Dispute Resolution from Salford University, UK.

www.hka.com

Michael is a Fellow of the Chartered Institute of Arbitrators (FCIArb), a member of the Chartered Institute of Building (MCIOB), an Associate Member of the Academy of Experts (AMAE) and an Associate Member of the Royal Institution of Chartered Surveyors (ARICS).

About the Author Michael Berrigan is an Associate Director working in HKA’s Expert Services team in Dubai, UAE. He is a Quantity Surveyor with 17 years’ experience working initially for main contractors in the UK and for

Captain Peter McArthur Master Mariner, Marine Pilot and Research Hydrodynamicist MBA, LLB (Hons), Master Mariner, CMarTech, FIMarEST, FNI.

Captain Peter J McArthur is a Master Mariner and practicing marine pilot with vast seafaring experience having commanded oil, chemical, product and molten sulphur tankers, bulk carriers and Ro-Ro vessels. He has extensive offshore oil & gas industry experience. As a qualified lawyer, Captain McArthurs’ commercial and technical knowledge, forensic capability, practical competencies, breadth of experience and research credentials combine with his technical know how have enabled him to analyse problems from numerous perspectives all at the same time - a fairly unique capability in one individual - resulting in an ability to develop strong, logically persuasive and legally coherent arguments when advising marine clients and acting as an expert witness. Area of work Worldwide Norwest Interaction Ltd Norwest Interaction Ltd, HQS Wellington, Temple Steps, Victoria Embankment, London WC2R 2PN Tel: 01978 861033 Mob: 07811 956 220 Skype: peter.mcarthur43 Email: info@nwint.net Web:www.nwint.net or www.pjmcarthur.com

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Crypto Assets, Financial Crime & Forensic Accounting In this article I explain how cryptocurrencies are used to launder illicit funds and how this affects the asset tracing work of forensic accountants. US authorities,1 the Silk Road site generated approximately $1.2 billion in sales revenue and $80 million in commissions – all of which was in bitcoin. Ulbricht was eventually caught and convicted, but only through old fashioned forensic investigation and not by breaking bitcoin’s security technology. However, his conviction was assured by another key feature of bitcoin, its tamper-resistant method of record-keeping – more on that later.

Forensic accountants use their expertise in finance, accounting and transaction processing systems to investigate fraud and other financial wrongdoing. Their work includes assisting clients on financial crime risks and controls, detection, investigation and litigation support, as well as asset recovery. Two aspects of this work are money laundering and asset tracing. Money laundering is the transformation of the proceeds of crime from their original form (such as cash) into new assets and locations to disguise their origin and make them appear legitimate. Typically, the assets may have been moved through a complex chain of entities, such as bank accounts, companies, trusts and special purpose vehicles. Often these will span multiple jurisdictions. All this is done to ensure the trail is as hard to follow as possible. What began as cash received through a UK Ponzi scheme might end up in mega yachts in Monaco, property in Spain and blue-chip investments in the London Stock Exchange. The money could be laundered via companies in Switzerland, bank accounts in Guernsey, trusts in the Cayman Islands and law firm client accounts in Gibraltar.

Russian interference in the 2016 US presidential election was alleged by the US authorities in July 2018. The investigation by Special Counsel Robert Mueller led to the indictment of 12 Russian intelligence officers for “hacking into the computers of US persons and entities involved in the 2016 US presidential election” and conspiring “to launder the equivalent of more than $95,000 through a web of transactions structured to capitalize on the perceived anonymity of cryptocurrencies such as bitcoin.”2 It is alleged that bitcoins were used by the defendants to evade scrutiny when purchasing servers, registering domain names and making other payments as part of their hacking activity. So what are cryptocurrencies, exactly? Cryptocurrencies, such as bitcoin, are “any publicly available electronic medium of exchange that features a distributed ledger and a decentralised system for exchanging value.”3 They are an exciting innovation that seem to offer certainty, security and transparency without government regulation or any central authority being involved. They are lauded by many as a true free-market innovation.

Asset tracing is the process of carefully uncovering the trail of an asset from origin to ultimate destination, documenting each step along the way, in a forensically sound manner that can stand up to court scrutiny. Cryptocurrencies such as bitcoin provide new opportunities for money launderers, through the partial anonymity they can provide and the lack of centralised supervision. Both these attributes are seen as key attractions by genuine and dishonest users alike. Two examples are the notorious case of Ross Ulbricht, the founder of Silk Road, which was the first dedicated black market on the dark web; and the more recent alleged activities of Russian intelligence operatives accused of seeking to interfere with the US presidential election in 2016.

Cryptocurrencies are actually a combination of four technologies: 1. Distributed ledgers: each participant can have a copy of the whole ledger (transaction record), which for bitcoin and many other cryptocurrency systems is structured in a “blockchain”. 2. Decentralised control: participants can deal directly with each other, not through a central authority or controlling entity like a bank.

Silk Road was created by Ross Ulbricht in 2011 as an online marketplace free from government oversight and interference. It provided anonymity through the Tor system, which helps internet users conceal their location and communications. Silk Road used bitcoin as the currency for all transactions. Bitcoins are held in online “wallets” whose ownership can be kept anonymous. Silk Road quickly became the main electronic bazaar for the buying and selling of black market goods, mainly drugs but also other illegal items such as stolen identity documents. According to the EXPERT WITNESS JOURNAL

3. Use of cryptography: to protect and authenticate transactions, balances and participants. 4. Automation: the ability to automate transactions programmatically, such as in smart contracts or by triggering the payment of interest on a bond once a specified event occurs. Cryptocurrencies are not regarded as true currency – they are not official money, which is called “fiat currency”. They are not legal tender and currently 28

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Criminals who make their money in the real economy, for example through investment fraud, will need to convert their proceeds into cryptocurrencies, which means finding a party willing to accept fiat currency in exchange. In practice - for transactions of any size - the payment of the real currency will need to pass through a financial institution such as a bank. If the financial institution has strong anti-money laundering controls then it will consider whether the source of the funds and the nature of the transaction seems suspicious and, if so, report it to the authorities. Similar considerations apply when cryptocurrency is converted back into fiat currency. This is one area on which forensic accountants can focus when trying to trace assets: regulated financial institutions are required to follow stringent “know your customer” rules, and their records can therefore be a useful source of information about the identity of the parties.

are not widely accepted across society. However, they can offer the following benefits: • Security • Speed • Low transaction costs, avoiding banks and intermediaries • Convenience • Relative anonymity • Decentralised dealings without any central oversight or monitoring One key aspect of a classic cryptocurrency such as bitcoin is the distributed blockchain ledger technology. What this means is that is every single transaction, since day one, by every party in the cryptocurrency system, is recorded in a ledger, which is a chain or sequence of transaction “blocks” called a “blockchain”. The net result of the history of all the transactions affecting a user’s wallet determines the closing balance on that wallet. Every user can have a copy of the whole ledger, and can therefore see all the transactions, though the identity of wallet holders may be unknown. This sharing of information about transactions across the whole system makes it very hard to falsify the records. Because everyone else has a full copy of the ledger, altering one’s own copy will have no effect: each new block of transactions is only finalised and accepted – and then shared with all the users – once it has been properly validated by a special class of users called “miners” using complex cryptographic techniques. The transparency of the ledger record helps make it very hard to tamper with.

One weakness from the regulators’ point of view has been poor regulation of cryptocurrency exchanges – companies that buy and sell cryptocurrencies, providing the entry and exit points to customers. These have typically been exempt from anti-money laundering regulation. However, with the rise cryptocurrencies and the associated money laundering risk this is changing. The EU’s 5th Anti-Money Laundering Directive, which came into force in July 2018, requires member states to introduce tighter rules, bringing regulation of cryptocurrencies and cryptocurrency exchanges in line with existing rules for fiat currency and banks. In December the UK government announced it will address the risks by going significantly beyond the requirements of the new directive, and will be consulting on this during 2019. Other governments around the world are taking similar action: for example, in 2018 the US Treasury Department’s Office of Foreign Assets Control issued guidance expressing how it believes transactions in digital currencies should be treated similarly to those in fiat currencies.

What are the financial crime risks? As already mentioned, cryptocurrencies can offer a degree of anonymity and the ability to move financial assets across jurisdictions without government oversight or regulation. A person can open a cryptocurrency wallet, which appears simply as a computer address on the system, without disclosing anything about his or her identity. As we saw with Silk Road, many illicit items can be bought and sold using cryptocurrency. It is often the preferred means of exchange for items such as stolen personal data, ransomware payments, drug dealing and other black market goods and services. It is also increasingly used to evade state sanctions that prohibit the use of official currencies, such as the US dollar. Several sanctioned countries have reportedly indicated that they are developing their own cryptocurrencies, including Iran, Russia, Myanmar and North Korea.

So how big a problem is cryptocurrency money laundering? The UK government’s 2015 and 2017 National Risk Assessment of Money Laundering and Terrorist Financing initially assessed the risks associated with cryptoassets to be relatively low.4 However, since then, money laundering with cryptoassets has been identified as a growing problem. Europol has estimated that £3-4 billion is laundered through cryptoassets each year in Europe, which is a relatively small proportion of total laundered funds, estimated at £100 billion.5 However, this seems set to rise.

However, while cryptocurrencies may provide a safe space for criminals to transact with each other, the range of legitimate assets that can be purchased with cryptocurrencies is still fairly limited. Ultimately, if they want to spend their ill-gotten gains on useful items, criminals will eventually need to get their assets out of cryptocurrencies and into the “real” economy. They also need to convert the proceeds of their crimes into the cryptocurrency in the first place. This highlights two key areas of vulnerability from the criminals’ perspective: the points of entry and exit.

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Naturally, criminals gravitate to exchanges in jurisdictions with the weakest anti-money laundering defences. While this means it is difficult to stamp out money laundering, it does result in illicit activity being pushed towards “rogue” jurisdictions. As a forensic accountant, seeing transactions pass through such jurisdictions raises red flags, which is useful since it can help narrow the focus of an investigation onto the areas where criminal activity is most likely.

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mistake by Ulbricht, that blew his anonymity, not a flaw in bitcoin.

What specific techniques can forensic accountants use to investigate cryptocurrency transactions? It is a common misconception that digital currency is untraceable and completely anonymous. While it may be true that wallets are stored as anonymous computer addresses within the technical cryptocurrency system, there are multiple ways it may be possible to link wallets to the parties that control them. These can include traditional forensic investigation techniques, such as transaction pattern analysis (for example matching property transfer records with transactions in the cryptocurrency ledger), or simply obtaining information from co-operating parties. More advanced techniques include analysis of internet traffic through particular servers and IP addresses.

The Federal Bureau of Investigation seized Ulbricht’s computer and discovered it contained hundreds of thousands of bitcoins, many of which had been received recently. During his trial Ulbricht claimed that the bitcoins were his, but he said they had nothing to do with Silk Road. Although he admitted he had originally set up the site, he claimed to have stopped running it long ago. However, since the anonymity of Ulbricht’s wallet had been breached, it was easy for the FBI to analyse the transactions through his wallet and demonstrate the provenance of his bitcoins. Since the bitcoin ledger – which is publicly available – is a full record of every transaction ever conducted, it was a simple exercise for the FBI to track Ulbricht’s bitcoins back to their source: Silk Road. He was convicted of money laundering, computer hacking and conspiracy to traffic narcotics. He was handed a double life sentence plus forty years without the possibility of parole.

In fact, cryptocurrencies can be the forensic accountant’s best friend, because literally every transaction is indelibly recorded in the blockchain. And for traditional cryptocurrencies like bitcoin, this is a freely-available public ledger. Every transaction is literally there for all to see and analyse. This allows forensic accountants to use graph technology and network theory to analyse the recorded transactions, aided by sophisticated graph database systems (in mathematics, a graph is a network of nodes, such as wallets, and links, such as transactions between wallets). These systems can be used to analyse hundreds of thousands of transactions between different wallets to identify patterns of activity, such as heavy traffic routes and clusters of activity, or the ultimate destination of apparently disparate individual transactions. Since all transactions are fully recorded, it can be possible to trace flows across numerous intermediate nodes in the network to their entry and exit points. From there the focus can move to the relevant cryptocurrency exchange, where the assets are converted between crypto and traditional assets, and then into regular bank accounts. As mentioned above, more traditional techniques can be employed to identify who controls each of the nodes.

References 1, Ulbricht indictment, 27 September 2013. 2, Indictment, US vs. Viktor Borisovich Netyksho, et al., 13 July 2018. 3, “Dear CEO letter” from the UK Financial Conduct Authority to chief executives of regulated institutions, 11 June 2018. 4, Cryptoassets Taskforce Final Report, October 2018. This is a report by a UK government-sponsored taskforce including HM Treasury, the Financial Conduct Authority and the Bank of England. 5, Ibid.

Article by Paul Doxey Paul is a Senior Consultant to the Forensic Services Practice of Charles River Associates +44-20-7959-1424 pdoxey@crai.com www.crai.com

Therefore, once the technology of cryptocurrencies is understood, the forensic accountant can use a range of traditional and new tools to crack open transaction secrets. And once anonymity has been breached the cryptocurrency ledger can become a treasure trove of complete and accurate information, all neatly tied in: something rarely possible in traditional forensic asset tracing.

The views expressed herein are the views and opinions of the author and do not reflect or represent the views of Charles River Associates or any of the organizations with which the author is affiliated. CRA’s Forensic Services Practice – including our state-of-the art digital forensics, eDiscovery and cyber incident response lab – is certified under International Organization for Standardization (ISO) 27001:2013 requirements.

Postscript – how Ross Ulbricht was caught and convicted. Ulbricht’s anonymity was breached through an error he made that was spotted by Gary Alford, an Inland Revenue Service investigator working in his spare time. Alford had been working with the US Drug Enforcement Agency to find a way to bring down Silk Road. He noticed that Ulbricht had recently openly used the online nickname “altoid”. He recalled that this same pseudonym had previously been linked to the early days of Silk Road. Ulbricht’s use of the same name much later provided the lead that connected him to Silk Road. Thus, it was old fashioned forensic investigation techniques, and a EXPERT WITNESS JOURNAL

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Making Cross-border Mediation Real by Martin Burns In August 2019, 46 nations, including China and the USA, gathered in Singapore to sign the United Nations Convention on International Settlement Agreements Resulting from Mediation. Known more simply as the “Singapore Mediation Convention, it represents an international dispute resolution framework, which improves cross-border enforceability of settlement agreements. It provides businesses with certainty and guarantees that have previously been absent in relation to mediated outcomes of disputes.

Another thing that can discourage mediation is when parties approach mediation as if it were a “one size fits all” process, and not something that can be easily engineered and deployed to meet the needs and priorities of different sizes and types of businesses. The Singapore Mediation Convention represents a hugely positive step forward for the promotion of mediation of cross-border commercial disputes. And while many commentators have naturally focussed on the fact that the Convention permits quicker and simpler enforcement of settlement agreements, it is the description of what mediation is in Article 2 of the Convention that may do most to encourage parties to use it to resolve their disputes.

Enforcement of mediated agreements of crossborder disputes is often complicated. The parties may agree to court proceedings in one jurisdiction, but the court's judgment may then need to be enforced in another jurisdiction where the other party’s assets are located. This can involve significant time and costs and prevent a party from receiving monies, or other remedies, that were agreed at the mediation. These potential enforcement issues can easily dampen any enthusiasm the parties had to engage in mediation in the first place.

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For many lawyers and other professionals, who regularly use litigation, arbitration and other dispute resolution procedures, the temptation is find a reliable methodology that they understand and stick with it. Some arbitrators and adjudicators will follow the

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to reach amicable settlement of disputes with the assistance of independent third-parties, who are subject matter experts appointed through the Royal Institution of Chartered Surveyors (RICS), who cannot impose settlement. Over the past 3 years, the CAP procedure has greatly reduced the numbers of disputes and associated costs on TfL contracts.

same path, regardless of whether a dispute before them is about a few thousand dollars or many millions, or whether the issues at the heart of a dispute are enormously complex or straightforward. I know of a few timeworn arbitrators and adjudicators who have used the same letter templates and directions in every case they have dealt with for decades. It seems they must follow a familiar and well-worn path regardless of the relative complexity and/or value of the dispute they are dealing with. The path they follow can often be painstaking and detailed. This may be fine when a dispute is multi-faceted and involves enormous sums of money, but the problem is that these arbitrators and adjudicators can give no consideration to adapting their approach where disputes are about simple clear-cut matters. They will apply the same procedure and take just as long to resolve a simple dispute as they would a complex multi-issue dispute. And it is the parties who generally have to pay for it in time, money and resources.

CAP is an innovative form of dispute resolution that particularly lends itself to major infrastructure projects where there are lots of suppliers, and potentially lots of money at stake if they get into disputes. It is clear that the Singapore Mediation Convention can, and will, offer considerable support to organisations and businesses based in countries that have signed up to it. It will enable parties to develop and implement cross-border dispute resolution procedures that address their special needs and priorities, rather than having to follow someone elseâ&#x20AC;&#x2122;s procedure. Parties can adapt procedures, like CAP, that are designed to help parties achieve agreed settlements and provide certainty that settlements can be simply and effectively enforced. They can even design their own bespoke mediation process in the confidence that it can achieve, not only agreed outcomes but, final and binding results too.

Article 2(3) of the Singapore Mediation Convention defines mediation as a method for resolving disputes whereby they endeavour "to reach amicable settlement of their dispute with the assistance of a third person or persons ('the mediator'). The difference between a mediator and a judge, arbitrator or adjudicator is that a mediator lacks â&#x20AC;&#x153;the authority to impose a solution upon the parties".

Martin Burns RICS, Head of ADR Research and Development 09 September 2019

As long as any settlement that a party wishes to enforce falls within this definition, the Singapore Convention applies, even if the process is not actually called a "mediation". Furthermore, there is no need for a mediation be formally supervised by a mediation institution or conducted by a government and/or institutionally approved mediator. The Convention thus provides a deliberately non-prescriptive definition of mediation. It is this in-built flexibility that makes the Convention meaningful and will thus make mediation an attractive proposition for businesses.

020 7061 1100 george.palos@surveyors-valuers.com 12 Dorrington Street London EC1N 7TB www.surveyors-valuers.com

Chartered Valuation Building Surveyors, Quantity Surveyors We are a multi-disciplinary practice of Chartered Valuation and Building Surveyors based in London, with representation across the UK and overseas. We provide independent and creative advice on matters of value, structure and design.

For some years, UK commercial operations have been adapting mediation techniques to accommodate their, and their clientsâ&#x20AC;&#x2122;, business priorities and idio syncrasies.

Our clients are purchasers, investors, owners and occupiers ranging from international institutions to private individuals. We deal with residential, commercial and industrial property on a daily basis and have expertise in a diverse range of specialist property types. Our key services include: Property Valuations including, Residential, Commercial, Development, Industrial, Probate, CGT Lease extensions

Transport for London (TfL), which is responsible for, amongst other things, running the London Underground system, engages many 100s of suppliers on contracts ranging from simple maintenance works to full scale refurbishment of lines and stations. Given the vast array of works and numbers of contracts involved, the potential for disputes between TfL and suppliers has, historically, been enormous.

Building regulations

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Our experts are members of the Valuation, Building Surveying, Construction and Dispute Resolution Faculties of the Royal Institution of Chartered Surveyors. We are actively involved in the valuation of residential and commercial property for private clients and commercial and residential bank valuation panels. We have surveyors who act as arbitrators and expert determinations.

In recent years, however, TfL and contractors have embraced a dispute resolution procedure, known as CAP, which applies mediation techniques, though no one concerned with it actually refers to it as mediation. The procedure involves parties endeavouring EXPERT WITNESS JOURNAL

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Should you require further information on any of our services please do not hesitate to contact us directly fill out our request information form online and we will call you back!

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Take ownership of your career Diploma in Arbitration Flexible distance learning providing you with the essential skills required to represent parties or discharge the role of arbitrator. Delivered on a module-by-module basis so you can work your way up to a full diploma qualiďŹ cation in your own time.

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All in Together ‘Hot-tubbing’, or concurrent expert evidence, has been used for the first time in a Scottish civil court case. Is the experience likely to be repeated? Katherine Doran reports At the end of 2016, Lord Woolman issued his decision in SSE Generation Ltd v Hochtief Solutions AG (2016) CSOH 177. The case concerned liability for the collapse of part of a water-bearing tunnel at Glendoe hydroelectric station in Fort Augustus.

Concurrent expert evidence is already a feature of civil litigation in England, with a suggested procedure set out in Practice Direction 35, supplementing the Civil Procedure Rules, Part 35. It is also commonly used in arbitration and other forms of ADR. So what does it entail?

This was one of the longest and most technically complex cases to come before the Scottish courts in recent years. The court sat for 91 days; 73,000 documents were lodged, including 37 expert reports and 91 witness statements. Of those, 19 experts gave evidence at proof, and 46 witnesses of fact.

Views from experience The procedure adopted by Lord Woolman mirrored that set down in Practice Direction 35. His Lordship was also guided by video demonstrations from the Judicial Committee of the New South Wales Commission. It was essentially this: • Counsel for the parties agreed in advance a list of suggested topics to be discussed during the concurrent evidence session.

The court was faced with the challenge of hearing and comprehending technically difficult expert evidence on matters such as structural geology, rock mechanics and tunnel engineering.

• Lord Woolman initiated the discussion between the expert witnesses by asking one of them to set out his position on a particular issue, then inviting the others to participate in the discussion, questioning one another as appropriate.

The case was the first in the Court of Session to use “hot-tubbing” to hear expert evidence. Hot-tubbing, or concurrent evidence, is a process whereby expert witnesses of the same or similar disciplines give their evidence at the same time in a structural discussion, with the judge acting as chairperson.

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• Counsel were invited to ask follow-up questions.

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narrow technical dispute – less so where there was little common ground between the parties or the level of detail was too great.

A 2016 report by the Civil Justice Council on hot-tubbing (online at bit.ly/2oQRGGC), found the procedure is well liked by judges and practitioners alike. This view was echoed by Lord Woolman in his judgment at para 258: “I found it an extremely valuable exercise and one which I would repeat in suitable future cases. Instead of hearing complex testimony weeks apart, I was able to hear the different opinions at one and the same time. They were also able to challenge one another’s position. This brought the topics into sharp focus. Each expert had to crystallise his position.”

• Does the process have the support of all involved? Litigants will need to be comfortable with novel approaches to taking evidence. Expert witnesses need to understand the process and be confident asking and answering questions of one another. Solicitors and advocates will have to agree a procedure up front, and possibly an agenda of topics to be discussed. And finally, judges need to be fully engaged with the case in order to formulate suitable questions and chair a productive discussion.

When considering the CJC’s report, the English Civil Procedure Rule Committee expressed some caution over the use of hot-tubbing. It noted that hot-tubbing required significant work and time, and early buy-in of all concerned. It was also felt that if hot-tubbing is used, there must be adequate safeguards in place to ensure fairness of the proceedings.

Provided these criteria are met, there is no reason why hot-tubbing should not be used more widely. The opportunity for experts to discuss and question one another is a useful addition to the examination process. This interactive process is likely to crystallise positions, and highlight areas of agreement or divergence of expert opinion. Ideally, this will lead to more measured and reasonable positions being advanced, and ease the decision-making process.

This was achieved in SSE v Hochtief by using hottubbing in addition to, and not instead of crossexamination, so both parties had sufficient opportunity to test the experts’ evidence. By hearing evidence concurrently, it was possible to focus the key issues and garner the respective positions of the experts on those issues.

Katherine Doran is a senior associate with Holman Fenwick Willan LLP, London, who acted for Hochtief in this litigation.

Conditions for success There are two major factors that will determine the success of hot-tubbing: • Is the case suitable? Lord Woolman commented that the process was most useful where there was a

Reproduced by kind permission of The Law Society of Scotland www.lawscot.org.uk/members/expert-witness-directory/

Expert Evidence International Limited Dr Thomas Walford BSc (Hons), PhD, CEng, MIET, MIMechE, CDipAF, MEWI, MAE, MCIArb

Private Banking, Investment and Wealth Management, Property, Finance, Tax Regulations, Expert Witness and Dispute Resolution Expert Contact 36 Old Park Avenue, London SW12 8RH, Tel: +44 20 7884 1000 Mobile: +44 7769 707020 Email: enquiries@expert-evidence.com Website: www.expert-evidence.com

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"Working as an International Expert" by Dr Thomas Walford BSc PhD C Eng MIMechE MIET MEWI MAE CDipAF & Director of Expert Evidence International Limited and Expert Evidence Limited.Governor/Director of Expert Witness Institute. Founding Committee Member of EWI Singapore. I have been invited to write an article for this international magazine as a court expert witness with experience working in many of the worldâ&#x20AC;&#x2122;s international courts. I thought it might be useful to readers to have a personal account of my working life in the first quarter of 2019 to give an idea of what one might expect from the role. In the narrative below, minor details have been changed to preserve confidentiality. I practise as an expert witness in banking and financial matters, having spent the majority of my working life in this field, initially in junior positions and later achieving promotions, which led to my having a very wide range of experiences, subsequently in relatively senior roles. I started in venture capital (now generally referred to as private equity, although we rarely used that term in the 1980s) and then became a front line equity manager, running portfolios contained within unit and investment trusts. There was never a dull moment, including major events such as the crash of 1987 and equally â&#x20AC;&#x153;big bangâ&#x20AC;?, the new system which removed the rules keeping jobbers, brokers and banks separate and abolished fixed commission charges. There have been further changes since these years. More recently, I ended up running the private client investment divisions of subsidiaries of banks, providing advice and management of portfolios for individuals, trusts and investment companies both onshore and offshore, depending on the available circumstances. As you can imagine, and particularly during the years 1987, 1990, 1998, 2000-2003 and 2008, when the stock market had serious wobbles, there were many instances when client portfolios did not live up to their expectations and this led to complaints. As a

senior director of the department, it was left to me to deal with the clients and seek to ensure they understood the risk/return balance which a portfolio manager might be expected to achieve. At the same time, over this period, the whole regulatory framework imposed on the financial industry was developed and implemented and modern day regulation, as we now know it, came into being. As a result, by 2009, I had a very broad experience of many different banking principles and also of dealing with disputes between financial institutions and their clients. It was, therefore, a natural consequence of this that I set up Expert Evidence to provide advice and information to the legal profession and ensure that courts had the right input so that cases could be decided from a position of knowledge. Amazingly, there is not a great deal of competition in this area. The role of the financial expert witness in the courts has become all the more important due to the increasing complexity of financial instruments over this period. The idea of a synthetic derivative or a collateralised mortgage obligation as a security was relatively unheard of in the 1980s outside the world of city dealers. In the 2000s, many private clients, particularly the wealthier ones, were sold Structured Products, many of which were not fully understood. Litigation is not the only means of resolving a dispute: parties can seek to resolve disputes through mediation and arbitration, so these too became essential additional facilities which are offered by the Expert Evidence service. Both can provide quicker, less adversarial environments for dispute resolution.

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The shocks of 2008 were enormous in the financial markets and they initiated a whole change in regulatory approach and the kind of service that clients would accept. The crash also initiated a whole new series of disputes, many people having lost substantial amounts of capital and few understanding what had really gone wrong. Overlay this with additional problems, like the Madoff saga, and losses expanded. Such were the liquidity issues after this, national governments were forced to enter a period of quantitative easing and low interest rates which then produced their own problems. Interest rates remained low for 10 years, which then led to the Interest Rate Hedging Product problems for many commercial companies, which had sought to protect themselves from interest rate rises.

Lastly, international expertise can also be preferable when the available pool of experts is very small and all the experts in one country know each other and have trained together. In such a situation, the requirement for an expert who can be independent, impartial and completely removed from the litigation parties is best achieved by using an expert from another country. All the above principles came together for me and Expert Evidence in the first few months of 2019. I have previously given evidence in trials in England, Ireland, the UAE (DIFC), the US, the Caribbean and Singapore, so am quite familiar with the different rules and ways of running cases. At the start of 2019, I had been working on three cases which were due to be scheduled for trial in February and March. The first was in Singapore from 19th February and was due to last until 1st March. Then I was due to be available for a court in Nassau, Bahamas on Tuesday 5th March, which was due to last that week closing on 8th, following that, I was due in the Southern District of New York for a jury-decided civil trial from 11th to 15th March. It took quite a challenging itinerary to get from Singapore to Nassau over the space of a weekend, involving flying to Hong Kong, Los Angeles and Miami where I had an overnight night stop before finally reaching the Bahamas.

The stage was set for many disputes. The world works on very similar financial systems and, although each country or region has its own currency, the banking principles remain largely similar. Many of the major banks are highly international and hence operate in many different jurisdictions. In some cases, clients sought to protect their wealth from authoritarian regimes and so would invest part of their wealth abroad. Others sought to mitigate their tax obligations and therefore frequently chose to invest through low tax jurisdictions. Many of the world’s largest banks are truly global and so have subsidiaries in many countries. Finally, one of the most common investment principles is to look for diversification to mitigate risk and, consequently, clients are often persuaded to invest in many different industrial areas. All these factors combined led to the elements causing international disputes.

The trial in Singapore, to be heard in the Singapore International Commercial Court (‘SICC’) started on time and in the main Supreme Court building, just behind the National Gallery of Singapore. The building is fantastic, having a marble-faced exterior and a large central atrium with the main courts off both sides and escalators serving each floor. Security is tight with everyone needing to go through airport style checks whenever they enter the building. We had been working on the case since October 2016. I had completed an expert’s report in December 2018, which had been submitted to the court and I then received the report that had been written by the expert appointed by the other side. A number of issues had come up on which we did not agree, and we therefore scheduled an experts’ meeting in London in late January 2019 to discuss this and were then instructed by the court to produce a joint statement. This was completed in early February. The discussions at an experts’ meeting for the English Courts are always conducted under Civil Procedure Rules 35 (those that apply in the England and Wales), although this case was to be heard in the Singapore Courts and under

Finance is not the only discipline to be widely international. Shipping and maritime trade have the same elements and potential for problems to arise where there are losses. Disputes arising from maritime incidents can also occur in any part of the world and as a result the disputes need to be heard on an international basis. Medicine is very similar the world over and hence medical principles are similar throughout. Experts in medicine in one country can well apply elsewhere and countries’ borders provide no limit to the application of medical principles. Gravity is also, obviously, universal, hence engineering principles remain the same. A bridge in one part of the world will usually also remain in place elsewhere, hurricanes and earthquakes excepted.

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Singapore Litigation rules. In Singapore the applicable rules are those contained in the Rules for the Court 40A and the SICC has its own set of rules contained in part XIII of the SICC Practice Directions. I sat in court each day making notes on the evidence and cross-examination and there were really very few surprises. The story, as told by the main plaintiffs, was in line with the witness statements that they had previously provided. However, this was still a very productive time in that it made sure I was fully familiar with the facts of the case and all the evidence available. Following the cross-examination of the two plaintiffs, the focus of the court turned to the bank and the appropriate executives who had provided the advice and service to the clients. The case was complex in that it involved financial institutions in Singapore, Dubai, Bermuda, the UK and Germany. The judge made a particular effort to ensure that the trial kept to the timetable and would not overrun the two week window reserved for it. He achieved this most satisfactorily while at the same time allowing for the attorneys to probe those areas that they wished to. My turn in the witness box came up on the afternoon of the eighth day. By this stage I was living and breathing the case and had all the facts and references at my fingertips. As much as one feels nervous about giving evidence, it is also a chance to show knowledge about not only the facts of the case but also the general principles and processes applied within banks to provide a service to their customers. In this case, an investment portfolio had purchased a life policy through a loan and the interest payments had become too expensive to afford. As a result, the loans had been recovered by the bank and the investments and policy sold to provide the liquidity. This had caused severe losses to the clients. My time in the witness box was almost over before I really even knew it. It was not too difficult to answer the questions and I felt I had dealt completely with each point that counsel wanted to investigate. I was stood down long before I expected to be and returned to the back of the court to watch the cross-examination of the other expert. When that had finished the evidence part of the trial closed.

The final day was taken up with the judge providing instructions to the counsel so that they could prepare their closing statements. This dealt with many of the legal aspects of the situation and the duties of financial institutions and the ways that contract law applied to this case. I then left Singapore, arriving in Nassau on 4th March. I found that the trial there had been delayed until later in the year but I went anyway to meet up with the lawyers as planned followed by a case management hearing in court. This left me with three days to kill before I was due in New York at the weekend for the trial there. The Nassau case had been on my books since November 2014 – some 4 ½ years earlier. It would now take 5 years to come to trial. We had completed the expert’s reports in December 2017 and, at the request of the lawyers, had held an experts’ meeting in February 2019, just before I left for the Singapore trial. It had been found that the two experts had received different evidence and, in particular, different valuations of the same portfolio. It was considered prudent to ensure that we were both working from the same hymn sheet and so we carried out an analysis of the differences and what were the correct valuations which we could agree between ourselves. This caused some delay and the experts’ joint statement was eventually completed in June 2019. On leaving Nassau, I had to deal with the New York trial, which had already started, and where I was expected to be giving evidence. I flew up there on the Saturday and met with the lawyers on the Sunday to run through what had been happening in the trial so far and to prepare myself for the facts of the case. I had expected to give evidence on the Tuesday and so prepared for this. Tuesday came and went and I was not called and the Judge was unable to sit on Wednesday, so the next opportunity was Thursday. However, it turned out that the plaintiffs wanted to put on a couple of new witnesses before me, so that blew Thursday out! Consequently my return flight on the Friday was not possible and I had to delay it until the following Wednesday. I waited outside the court for the whole of Monday and was not called. Unlike the trial in Singapore , I had been asked not to sit in the trial until I was called.

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I eventually went on to the stand on Tuesday afternoon. I was not there long and indeed was released within a couple of hours. The time went by so quickly I don’t think that I was really aware it had all started. It began with my evidence in chief, where the lawyers for the plaintiff (who appointed me) took me through the most important parts of my report and gave the jury the opportunity to appreciate the essential points on which the case was based. This evidence in chief is taken as read, in the English civil courts and so it rarely arises. It was a new experience. After that, the defendant’s attorney got up and asked a number of questions which I think were primarily intended to test my knowledge of the situation and the limits and range of available answers that applied. My background and experience were accepted by both sides as being sufficient to act as an expert in this case which was very pleasing. Finally, the plaintiff ’s lawyer had the opportunity to re-examine me on any points that he felt needed further explanation. None was necessary. After that I was stood down and was able to relax a bit and listen to the rest of the trial from the public gallery. I have been extremely lucky to have had an opportunity to advise courts in exciting parts of the world. As I stated earlier, finance is an international activity and the principles are not very different in other countries, nor are the nature and issues involved in the disputes. London remains a primary pivot point in litigation and dispute resolution as well as a source of substantial knowledge, with strong rules about fair dealing and legal knowledge. This has meant that, as a British expert, you are globally respected. I have much enjoyed the opportunity this has provided me. I hope and trust that we can maintain this position in the eyes of the world. All the above cases which I have been involved in have many interesting and critical points that the courts need to understand and I hope that my contribution has assisted in that endeavour. The correct ultimate decision, in my opinion, is really only possible if the judge and/or jury is in receipt of all the facts and understands how they should be interpreted in the financial world. Inevitably, there is considerable waiting involved before an appearance in a dynamic court situation,

where the progress of the case is inevitably largely determined by the speed of the previous witnesses’ evidence. New arguments come up and additional points on which the case may turn. This requires enormous flexibility on the part of all participants, including the experts who are being called to give evidence. There are frequent situations where an expert is called to account for their views and he/she needs to be able to defend them under cross-examination. Being a good expert in open court is a necessity. The adversarial system is very good at ensuring the evidence is critically examined and I always welcome the chance to show my knowledge. Poor or shallow experts are often ultimately exposed, which has to be a good thing for the profession in the long run. Lastly, I would come to the rules under which an expert operates. Every legal jurisdiction has a set of rules or principles (either written or understood). In some countries there are different sets of rules for different courts and in the criminal and civil systems. It is absolutely necessary that an expert is familiar with these rules wherever they are called on to assist a court. In some parts of the world, judges may have their own additional rules for experts who appear in front of them in their courts. Failure to observe these rules can lead to the evidence being excluded and it will normally be for an expert’s instructing lawyers to ensure you know what the rules are and that you have kept to them in the period up to trial. Once you are in the witness box, you are on your own and then knowledge of the rules is necessary to ensure you stay within the requirements. Although they may be different in each legal jurisdiction, they have the same basic principles, requiring the expert to be impartial, independent and have a duty to the court. We are also lucky in that the English legal system often uses a set of principles referred to as the Ikarian Reefer rules after a judgement by Sir Peter Cresswell in 1993 in a case concerning a ship. The detail of the case has been lost in history, as it not really relevant, but the duty of the expert to the court has been enshrined in his judgement ever since. He said in the judgement that Experts “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.” I wish you all luck and every success in developing your own international expert business.

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FIND YO YOUR IDEAL L CONSTRUC CTION EXPERT WITNESS, FA FAST, T, WITH THE DIALES APP! Search by expertis ertise and d then narrow yo our search by contract, regio on, sector or years of experrience. Download D l d th the fr f ee app by visiting our website www.diales.com or by scanning g the QR code with your smartphone camera.

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Our Global Experts Expert witness have the largest database of Experts in Europe. We have a number of experts who undertake global instructions. Below are a selection of our experts and their main area of expertise. All undertake instructions worldwide Tel: 001 312 351 0717 Email: epchiodo@gmail.com

Accommodation Needs Specialist Mr Andrew Skerratt Accommodation needs of disabled people 01903 538 196 Mobile: 07779 398 819 Email: andrew.skerratt@spsukltd.co.uk Website: www.spsukltd.co.uk

Bitcoin and Crypto Currencies Mr. Adam Firman • Cellebrite Certified Examiner • Access Data Certified Examiner • BlackLight Certified Examiner • XRY Certified Examiner and Train the Trainer • Certified Cyber Investigator (7Safe) Contact: Adam Firman Tel: +44(0)1763 261222 Alternate Tel: +44 (0)1763 285119 Mobile: +44(0) 7790 931029 Email: adam.firman@paconsulting.com Website: https://www.7safe.com

Aquatic Safety Mr Andrew Ebben Safety Consultant Contact: Andrew Ebben Tel: 01530 222 675 Mobile: 07985 412 320 Email: andyebben@aqualeisuresafety.co.uk Website: www.aqualeisuresafety.co.uk

Biology

Architecture

Professor Stefan Buczacki Consultant Biologist Tel: 01789 298 106 Email: info@stefanbuczacki.co.uk Website: www.stefanbuczacki.co.uk

Giles Quarme London-based architectural practice that specialises in all aspects of work relating to historic buildings. Contact: Giles Quarme Tel: 020 7582 0748 Email: mail@quarme.com Website: www.quarme.com

Building and Construction Mr George Ballard Consultant in Building Pathology, Structural Inspection & Materials Area of work: UK/International Tel: UK 01223 812 464 Mobile: UK 07879 422 726 Email: gballard@gbg.co.uk Website: www.gbg.co.uk

Banking Mr Matt Clarke Banking and Lending Expert Contact: Expert Evidence Limited Tel: +44 20 7884 1000 Mobile: +44 7773 655526 Email: matt.clarke@expert-evidence.com Website: http://expert-evidence.com

Mr. Paul Bradley Building Services Engineer Tel: 0161 974 1710 Mobile: 07798 630663 Email: p.bradley@tbanda.com Website: www.tbanda.com

GBRW Expert Witness Limited Banking and financial sector consultants (incorporating Associated Insurance Experts) Tel: +44 (0) 20 7562 8390 Email: experts@gbrw.com Website: www.gbrw.com/expertwitness

Mr Robert Breeze Quantum and Delay Expert, Chartered Arbitrator Tel: + 44 (0)191 374 4042 Mobile: +44 (0)7798 778 679 Email: rb@robertbreeze.co.uk Website: www.robertbreeze.co.uk

Dr Thomas Walford Private Banking, Investment and Wealth Management Expert Witness and Dispute Resolution Expert Tel: +44 20 7884 1000 Mobile: +44 7769 707020 Email: thomas.walford@expert-evidence.com Website: www.expert-evidence.com

Giles Quarme & Associates London-based architectural practice that specialises in all aspects of work relating to historic buildings. Contact: Giles Quarme Tel: 020 7582 0748 Email: mail@quarme.com Website: www.quarme.com

Biomechanics Mr. Ernest Chiodo Internal Medicine, Occupational and Environmental Medicine, and Public Health and General Preventive Medicine. Chicago, USA EXPERT WITNESS JOURNAL

I N T E R N AT I O N A L E D I T I O N

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Oculus Facade Consultancy Ltd Building Envelopes Expert Tel: 0203 174 0883 Email: info@oculusfacades.com Website: www.oculusfacades.com

Employment DJ Fox & Associates Ltd Employment expert witness reports Contact: David Roberts Tel: 01963 440859 Email: info@djfoxassociates.co.uk Website: www.djfoxassociates.co.uk

TWI Ltd Contact: TWI Ltd - Ian Morris Tel: UK 01223 899 000 Mobile: Ian Norris: UK 07765 403 458 Email: ian.norris@twi.co.uk Website: www.twi.co.uk

Energy Uniper Technologies Limited Engineering capability in the Energy Sector Contact: Mr David Potter Tel: +44 7841 057 508 Email: david.a.potter@uniper.energy Website: www.uniper.energy

Chemistry Mr Tim White Chartered Chemist Contact: Tim White Tel: 0800 083 4610 or +44 (0) 121 288 2386 Mobile: 07740 988 108 Email: tim.white@marquisandlord.com Website: www.marquisandlord.com

RICARDO ENERGY & ENVIRONMENT Energy, Waste, Air, Water, Environment Contact: Mr Phil White Tel: 01235 753246 Email: phil.white@ricardo.com Website: ee.ricardo.com

Rowan House Ltd Chemical Engineering & Process / Health and Safety Consultants Contact: Dr Zaffer Khan, Rowan House Ltd Tel: 01452 341 947 Mobile: 07725 563 684 Email: office@rowanhouse.co.uk Alternate Email: contact@rowanhouse.co.uk Website: www.rowanhouse.co.uk

Engineering Mr Steve Bennett Priniple Consultant - Domestic & Industrial Electric Wiring, Industrial Engineering Tel: 01530 412 777 Email: enquiries@finch-consulting.com Website: www.finch-consulting.com

Contaminated Land Expert

Mr Robert Cotterill FINCH Consulting Associate Consultant Contact: Finch Consulting Tel: 01530 412 777 Email: enquiries@finch-consulting.com Website: www.finch-consulting.com

Mr Jamie Mills Principal and contaminated land expert Tel: 01622 772 453 Mobile: 07950 520 199 Email: jmills@environcorp.com Fax:01622 695 451 Website: www.ramboll-environ.com

Envista Forensics Consultants and Engineers Contact: Ms Jennifer Gaster Tel: +44(0) 203 696 7996 Email: Jennifer.Gaster@EnvistaForensics.com Website: www.envistaforensics.com

Drugs/Narcotics Mr. Darrell Jones Expert in the field of International Drug Trafficking, National Distribution and throughout the Supply Chain to the End User in a wide variety of drugs. Mobile: 07401 042 201 Email: darrell.jones@drugsexpertwitness.com Website: www.drugsexpertwitness.com

Hawkins & Associates Consulting Scientists and Engineers Contact: Graeme Drysdale, Dr Andrew Moncrieff Tel: +44 (0) 20 7481 4897 Alternate Tel: +44 (0)1223 420400 Email: graeme.drysdale@hawkins.biz Alternate Email: andrew.moncrieff@hawkins.biz Website: www.hawkins.biz

Ecological Risk Assessment Ms Samantha Deacon Manager and Ecological Risk Assessment Specialist Tel: 01225 748 420 Email: sdeacon@environcorp.com Website: www.ramboll-environ.com

Dr. Rajen K. Lavingia Civil Structural Engineer Contact: Envista Forensics Tel: 020 3696 7996 Alternate Tel: 0800 319 6161 Mobile: 07914 667 832 Email: rajen.lavingia@envistaforensics.com Website: www.envistaforensics.com

Electrical Engineer Eur Ing Dr Robert Brown Chartered Electrical Engineer Tel: +44 (0) 1709 739228 Mobile: +44 (0) 7976 250624 Email: robertbrown@robertbrown.uk.com Website: www.robertbrown.uk.com

These are just a selection of our experts for instant searches visit;

www.expertwitness.co.uk EXPERT WITNESS JOURNAL

I N T E R N AT I O N A L E D I T I O N

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Tel: +44 20 7438 1602 Mobile: +44 7718 492 448 Email: a.allam@cundall.com Alternate Email: dr.ahmedallam@outlook.com Website: www.cundall.com

Professor David Last Consultant Engineer Tel: 01248 680 034 Mobile: 07831 455529 Email: professordavidlast@gmail.com Website: www.professordavidlast.co.uk

Lawrence L. Canary Fire & Explosion Expert Contact: Envista Forensics Tel: 0203 696 7996 Mobile: 07940 331 206 Email: larry.canary@envistaforensics.com Website: www.envistaforensics.com

Eur Ing Warren S Lister Mechanical & Electrical Engineer Tel: 01483 428 932 Mobile: 07802 362165 Email: listerw@listavia.co.uk Website: www.expertwitness.uk.com

EPINOTS Group Health and Safety, Fire Safety & Senior Data & Risk Expert Contact: Mr Simon Zeigler, Mr Simon Ossai, Mr Steve Wilkinson, Mr John Boote, Mr Dominic Asogwa, Mr Paul Eboh, Ms Joan Manning Tel: +44 (0) 20 3715 5550 Mobile: +44 (0) 78 9932 3899 Email: s.zeigler@epinots.com Alternate Email: s.ossai@epinots.com Website: www.epinots.com

Mr Peter Milner Finch Consulting Senior Consultant, Consultant Mechanical Engineer - HAVS & Noise Expert Contact: Finch Consulting Tel: 01530 412 777 Email: enquiries@finch-consulting.com Website: www.finch-consulting.com Mr Bill Moore Power, Steam and Refinery Plant Corrosion Expert Tel: 01530 412 418 Mobile: 07976 809 137 Email: powerccl@aol.com Website: www.powerccl.co.uk

Finch Consulting Engineering Business Risk Management Contact: Dom Barraclough Tel: 01530 412777 Email: enquiries@finch-consulting.com Website: www.finch-consulting.com

RSK Environment Ltd Specialist Engineering, Materials and Environmental Consultants Contact: Dr Ian Sims Tel: 01442 437500 Email: info2@rsk.co.uk Website: www.rsk.co.uK

International Fire Consultants Ltd Fire Safety Engineers and Consultants Contact: International Fire Consultants Ltd Tel: 01844 275500 Email: graham.wiles@ifcgroup.com paul.mcgahey@ifcgroup.com Website: www.ifcgroup.com

RINA Electrical & Mechanical Failure Investigations, Independent Consultancy & Expert Witness Services Chartered electrical engineers, mechanical engineers, metallurgists, chemists and physicists Tel: 01372 367350 Email: InfoLH@RINA.org Website: www.rina.org

Prometheus Forensic Services Forensic Fire Investigation Nationwide and Internationally Contact: Prometheus Forensic Services Tel: 01342 314384 Mobile: 07342 191354 Email: emma@prometheus-fs.co.uk Website: www.prometheus-fs.co.uk

Eur Ing E R J Ward Chartered Electrical and Mechanical Engineer BSc(Eng), CEng, FIET, FIMechE, MIDGTE, MAE Contact: Dick Ward Tel: 01298 871444 Mobile: 07770 468120 Email: warderj@rbands.co.uk Alternate Email: rbandsons@btconnect.com Website: www.rbands.co.uk

Warringtonfire Fire Engineers Fire, Fire Engineering, Fire Safety Infrastructure and Transportation Experts Contact: Saskia Stimpson Tel: +44 (0) 1925 655116 Alternate Tel: +44 (0) 161 212 7305 Email: info.fire.manchester@warringtonfire.com Website: www.warringtonfire.com

HR Wallingford Civil Engineering and Environmental Hydraulics Contact: Mike Dearnaley Tel: 01491 835 381 Email: tenders@hrwallingford.com Website: www.hrwallingford.com

Forensic Science Formedecon Ltd Contact: Maureen Archer Tel: 01388 811 003 Email: formedecon@aol.com Fax:01388 811 918 Website: www.formedecon.com

Fire Dr Ahmed Allam Director of Fire Engineering Contact: Cundall EXPERT WITNESS JOURNAL

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Hazardous & Explosive Atmospheres F.E.S. (EX) Limited Tel: 01472 598987 Email: enquiries@fes-ex.com, Geoff.fulcher@fes-ex.com, Martin.jackson@fes-ex.com, mick.robinson@fes-ex.com Website: www.fes-ex.com

Health and Safety ASK Consultants Health, Safety & Environmental Consultants (Dr Ivan Vince) BSc MSc PhD CSci CEng FIChemE CChem MRSC FEI Tel: 020 8658 1210 Email: ivince@askconsultants.com Website: www.askconsultants.com

Information Technology Mr Jason Coyne Forensic Computer System Examiner / IT Dispute Resolution Consultant Tel: +44 (0)845 226 0331 (Preston UK) Alternate Tel: +44 (0)207 043 3470 (London UK) Email: jcoyne@itgroup-uk.com Website: www.itgroup-uk.com Mr Stephen Taylor Information Technology expert witness - Software and IT Infrastructure for Banks and Investment Houses expert witness Contact: Expert Evidence Tel: 020 7884 1000 Mobile: 07967 688680 Email: stephen.taylor@expert-evidence.com Website: www.expert-evidence.com Mr D A Sykes - IT Group Specialist in IT and telecommunications systems with complementary qualifications and expertise in electronics and electrical engineering Tel: +44 (0)845 226 0331 (Preston UK) Alternate Tel: +44 (0)207 043 3470 (London UK) Email: tony.sykes@itgroup-uk.com Website: www.itgroup-uk.com

Insurance Mr. Victor W Broad Fire and Accident Insurance and Re-Insurance and Contingency Insurance Tel: 01737 814 623 Mobile: 07970 497 229 Email: yuranderee@hotmail.com Fax:01737 813 820 Website: www.insuranceexpertwitness.co.uk

Investment Mr Grahame Goodyer Investment Consultant and Performance Analyst Tel: 01425 620001 Mobile: 07860 587272 Email: grahameg@ir-ew.co.uk Website: www.ir-ew.co.uk

Legionella Mr. Nigel Richardson Legionella and Pseudomonas prevention, management and causation. Industrial water treatment.

Contact: Nigel Richardson Tel: UK 07958 124563 Mobile: +44 (0)7958 124563 Email: nigel@collatonconsultancy.com Website: www.collatonconsultancy.com

Marine/Naval Mr David Cannell Naval Architects & Surveyors Tel: +44 (0)1206 823337 Mobile: +44 (0)7860 629353 Email: marcia@dmcmarine.com Website: www.dmcmarine.com Mr Matthew French Marine, navigation, oceanographic and hydrographic consultant. Tel: UK 01458 250 465 Mobile: UK 07770-743375 Email: mfs@mfsassociates.co.uk Website: www.mfsassociates.co.uk Captain Peter McArthur Master Mariner, Marine Pilot and Research Hydrodynamicist Email: petermcarthur@expertwitness.co.uk

Materials Mr. Graeme Tipp Materials Scientist Tel: 020 8293 6655 Email: info@msc-global.co.uk Website: www.msc-global.co.uk

Materials & Concrete Technology Mr Jon Knights BSc MSc CEng CSci MIMMM FCS FICE Contact: Jon Knights Tel: UK 07837 486 850 Mobile: UK 07837 486850 Email: jonknights@jkmc.co.uk Website: www.jkmc.co.uK

Marine Mr John Freeman Marine Surveyor Tel: 01823 452244 Mobile: 07909 900 025 Email: fp@freemanandpartners.com Website: www.freemanandpartners.com Mr. Andrew Squire Marine and Engineering Consultants Contact: Loc Group Tel: (+44) 020 7264 3250 Email: a.squire@loc-group.com Website: www.loc-group.com

Mechanical Engineer Eur Ing Dom Barraclough Chartered Engineer - Managing Director Qualifications: Contact: Finch Consulting Tel: 01530 412 777 Email: enquiries@finch-consulting.com Website: www.finch-consulting.com

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Oil

Rubber

David Aron Chemical Engineer & Petroleum Engineer Contact: David Aron Tel: 020 8347 3498 Mobile: 07710 023 700 Email: davidaron@pdc.uk.com Website: www.pdc.uk.com

ARTIS: Independent Rubber Consultants Contact: Mr Martyn Bennett Tel: 01225 896500 Email: artisenquiries@avon-rubber.com Fax:01225 896501 Website: www.artis.uk.com

Mr. Peter Lumley Expert Engineer in Process and Industrial Engineering in the fields of Oil and Gas, Petrochemicals, Pharmaceuticals and Manufacturing. Tel: 0207 730 9224 or 07973 252 697 Email: plumley@manderstam.com Website: www.manderstam.com Alternate Website: www.consultingengineer.co.uk Manderstam International Group (MIGL) Expert Engineers in Process and Industrial Engineering in the fields of Oil and Gas, Petrochemicals, Pharmaceuticals and Manufacturing. Tel: 0207 730 9224 or 07973 252 697 Email: plumley@manderstam.com Website: www.manderstam.com Mr. Simon Nightingale Chartered Quantity Surveyor & RICS Accredited Nationwide & International Contact: Mr. Simon Nightingale Tel: +4529805370 Email: simon.nightingale@ncl-nordic.com Website: www.ncl-nordic.com

Property Mr. Paul Barnett Expert in property related financial transactions Contact: Expert Evidence Tel: 020 7884 1000 Email: paul.barnett@expert-evidence.com Website: www.expert-evidence.com

Quantity Surveyor Mr Robert Breeze Quantum and Delay Expert, Chartered Arbitrator Tel: + 44 (0)191 374 4042 Mobile: +44 (0)7798 778 679 Email: rb@robertbreeze.co.uk Website: www.robertbreeze.co.uk

Refrigeration Cambridge Refrigeration Technology Refrigeration, transport, commodities Contact: Mr A R Lawton Tel: 01223 365 101 Email: rlawton@crtech.co.uk Website: www.crtech.co.uk

Risk Management DNV GL Contact: Mr Angus Milne Tel: +44 (0) 20 3 816 4000 (London) Email: angus.m.milne@dnvgl.com Website: www.dnvgl.com

Shipping Murray Cormack Associates Naval Architects & Marine Surveyors Tel: +44 (0)1369 830 210 Email: admin@murraycormack.com Website: www.murraycormack.com Mr George Peter Wild Expert in Shipping, Ports and International Transport Tel: 01444 413 931 Mobile: 07876 031 763 Email: peterwi@gpwild.co.uk Website: www.gpwild.com

Software (Mobile Applications) Mr Peter Rocker Software Sector Expert, specifically for mobile applications â&#x20AC;&#x153;appsâ&#x20AC;? Tel: 020 3289 4649 Email: peter@northhillapps.com Website: www.northhillapps.com

Surgery Mr James William Rodney Peyton OBE TD Consultant in Trauma and General Surgery International Award Winning Author/Keynote Speaker/Trainor & Mentor Tel: +44 28 8772 4177 Email: rpeyton@rpeyton.com Website: www.rpeyton.com

Trade Mr Jonathan Pitman International Trade Expert Tel: +44 20 7884 1000 Mobile: +44 (0)7976 704612 Email: jonathan.pitman@expert-evidence.com Website: http://expert-evidence.com

Waste Management Dr Andrew Godley Specialist Waste Management Consultant PhD Tel: 01235 753 516 Mobile: 07800 586 193 Email: andrew.godley@ricardo.com Website: ee.ricardo.com

Weather WeatherNet Ltd - Dr Richard J. Wild Chief Meteorologist Geographical area of work: Worldwide Contact: Dr Richard J. Wild Tel: UK (01202) 293867 Email: rick@weathernet.co.uk Website: www.weathernet.co.uk

Want to join our directory please email:

info@expertwitness.co.uk EXPERT WITNESS JOURNAL

SUMMER 2018

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N.A.S.A. designed â&#x20AC;&#x2DC;Video Analystâ&#x20AC;&#x2122; enhancement system.

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Audio Video Forensics Ltd. Are specialists in audio and imagery evidence. We have worked with International Law firms, the International Chamber of Commerce, UK and European Police agencies & Military clients for over 25 years as an enhancement bureau and in expert witness capacity in court. Cases at crown court & Old Bailey include the Rhys Jones and Milly Dowler murder enquiries and the Glasgow bin lorry enquiry.

Tel: +44 (0) 7714 245 303 Email: mail@audiovideoforensics.com Website: www.audiovideoforensics.com

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