Contract – Contract for provision of computer services – purchaser contract with finance company – duty of co-operation to be implied in computer contracts – practice – responsibilities of expert witnesses generally – whether computer company liable to purchaser – whether purchaser liable to finance company.
The parties disputed the delivery and quality of a computer system. The buyer complained of many defects and eventually sought to reject the system.
Held: Anglo’s claim succeeded. The court provided updated Ikarian Reefer guidelines for expert witnesses. The court criticised one expert witness for failing to keep separate his role as negotiator and witness. It is normally inappropriate to seek to combine the two.
The court gave Ikarian Reefer guidelines updated to comply with the CPR:
‘1.An expert witness should at all stages in the procedure, on the basis of the evidence as he understands it, provide independent assistance to the court and the parties by way of objective unbiased opinion in relation to matters within his expertise. This applies as much to the initial meetings of experts as to evidence at trial. An expert witness should never assume the role of an advocate.
2. The expert’s evidence should normally be confined to technical matters on which the court will be assisted by receiving an explanation, or to evidence of common professional practice. The expert witness should not give evidence or opinions as to what the expert himself would have done in similar circumstances or otherwise seek to usurp the role of the judge.
3.He should co-operate with the expert of the other party or parties in attempting to narrow the technical issues in dispute at the earliest possible stage of the procedure and to eliminate or place in context any peripheral issues. He should co-operate with the other expert(s) in attending without prejudice meetings as necessary and in seeking to find areas of agreement and to define precisely arrears of disagreement to be set out in the joint statement of experts ordered by the court.
4.The expert evidence presented to the court should be, and be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of the litigation.
5.An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
6.An expert witness should make it clear when a particular question or issue falls outside his expertise.
7.Where an expert is of the opinion that his conclusions are based on inadequate factual information he should say so explicitly.
8.An expert should be ready to reconsider his opinion, and if appropriate, to change his mind when he has received new information or has considered the opinion of the other expert . He should do so at the earliest opportunity.’
Judges:
Toulmin QC J
Citations:
[2000] EWHC Technology 127, (2000) 144 Sol Jo LB 197
Links:
Statutes:
Supply of Goods and Services Act 1982 9
Jurisdiction:
England and Wales
Citing:
Clarified – National Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:
1. Expert evidence presented to the Court should be, and should be seen to be, the . .
Cited – Graigola Merthyr Co Ltd v Swansea Corporation CA 1928
The plaintiff mine-owner having had a contract that the neighbouring land owner would not refill its reservoir which would result in its workings being flooded, and that contract having expired, now sought an injunction to prevent the reservoir from . .
Cited – Edwin John Stevens v R J Gullis and David Pile CA 27-Jul-1999
The new Civil Procedure Rules underline the existing duty which an expert owes to the Court as well as to the party which he represents. . .
Cited – Tradition (UK) Ltd, Tradition Bond Brokers Limited, Howard, Harland v Cantor Fitzgerald International ChD 15-Apr-1999
When deciding whether a copying of a computer program was substantial, the test was not whether the program would run without that code. It had to be looked at as a whole allowing for the skill and labour which had gone into different sections of . .
Cited – Cala Homes (South) Ltd and others v Alfred McAlpine Homes East Ltd ChD 6-Jul-1995
The plaintiff alleged that the defendant had copied its house designs after a senior employee involved in creating the designs left and eventually came to work for the defendant. The plaintiff alleged that the copying was flagrant allowing . .
Cited – Cullinane v British ‘Rema’ Manufacturing Co Ltd CA 1954
The court considered the possibility of a claim in breach of contract for damages for both capital loss and loss of profit.
Lord Evershed MR said: ‘It seems to me, as a matter of principle, that the full claim of damages in the form in which . .
Cited – Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961
The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
Cited – Anglia Television v Oliver Reed CA 1971
The television company had agreed with the actor defendant for him to appear in a production. He breached the contract. The company sought both loss of profits and for the expense incurred. The issue before the Court of Appeal was whether such . .
Cited – Lep Air Services v Rolloswin Investments Ltd; Moschi v LEP Air Services HL 1973
The obligation of a guarantor under a contract ‘is not an obligation himself to pay a sum of money to the creditor, but an obligation to see to it that another person, the debtor, does something.’ When a repudiatory breach is accepted by the injured . .
Cited – Branwhite v Worcester Works Finance Ltd HL 1969
A dealer may for some ad hoc purpose be the agent of a finance company. In relation to a purchase of a motor vehicle through a motor dealer, where the prospective purchaser completes an application for hire purchase in the office of the motor . .
Cited – Lease Management Services Ltd v Purnell Secretarial Services Ltd CA 1-Apr-1994
A leasing company adopting the style of a like supplier had to adopt that supplier’s representations. . .
Cited – Sovereign Finance v Silver Crest 1997
. .
Cited – Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd HL 1-Jul-1914
The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Contract, Agency
Updated: 12 April 2022; Ref: scu.201803