Expert Failing In Duty to Court May Be Reported To Professional Body

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

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

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

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

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

The Claimant's expert's conclusion was that copying had taken place, and that Mr Koolhaas must be lying if he denied it. The expert was not criticised for giving an opinion on the very question which the...

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