The substance of the case is now famous. The first defendant was Bob Geldof and the claimant was John Moylett, former Boomtown Rats bandmate and keyboardist. John Moylett claimed that he wrote part of the hit I Don’t Like Mondays, but had never been credited and was seeking a share of the royalties. Given the song was first released in 1979, and hence there are significant royalties at stake, who doesn’t like Mondays has never been so significant (for Bob Geldof and John Moylett at least).
The issue in the application
The claimant’s expert was Mr. Protheroe, a composer. One of the issues that he addressed was whether the song was more likely to have been composed on a guitar or a piano. In order to reach a view on that, Mr. Protheroe asked two guitarists to perform the song for him and gave details of this in his report.
The first defendant objected to sections of the report for two reasons:
- No permission had been granted for expert evidence from the two guitarists, yet Mr. Protheroe’s report contained their opinions.
- The report went beyond the scope of an expert report by expressing an opinion on the “ultimate question” in the proceedings. Namely, whether the song was composed on a guitar or a keyboard. This was fundamental to the claim as it went to whether Bob Geldof (a guitarist) or John Moylett (a keyboardist) was more likely to have composed the song.
The judge dealt with both objections swiftly. Insofar as the report dealt with whether the song was more likely to have been composed on a guitar or a piano, it was admissible and relevant evidence. In order to reach a view, Mr. Protheroe was entitled to seek demonstrations from two guitarists, form an opinion based on those demonstrations and set out details of this in his report. The claimant was not, though, able to rely upon any opinions expressed by the two guitarists, as opposed to Mr. Protheroe’s view based on their performances.
Relying on Hoyle v Rogers, Carr J distilled the following principles which apply when a court is considering whether to excise sections of an expert report:
- It is not the function of an expert to give an opinion on disputed issues of fact which do not require any expert knowledge to evaluate.
- Where an expert does this, his or her evidence in this regard is inadmissible and should be given no weight.
- However, except in the very clearest of cases, there is little to be gained from excising material from a report which falls into this category. Such a red-lining exercise is usually unnecessary and disproportionate. The trial judge can simply disregard what is inadmissible.
The judgment may, superficially, be read as signalling a lenient approach towards expert reports. However, I think such a reading would be misleading:
- In Moylett, objections were only made to parts of the report. In my view, a red-lining exercise is more likely to be proportionate where the majority of a report or clearly defined sections of a report are found to be inadmissible. By analogy, the short judgment in JD Wetherspoon v Harris is worth reading, even if it’s a sobering warning for anyone who has prepared a witness statement. The judge found that the majority of one witness statement was abusive, as it contained evidence that the witness would not be able to give orally. He found that the abusive paragraphs should be struck out. Although the judge invited further submissions on which paragraphs should be struck out, the claimant’s case was that only seven of the 231 paragraphs should remain.
- Even if inadmissible and irrelevant material is not excised, it is inevitably damaging to an expert’s credibility if a court concludes that swathes of the expert’s report are inadmissible.
So what does this mean in practice?
In light of the above, my practical tips are:
- When reviewing your own side’s expert report before service, always have one eye on admissibility. Is the expert expressing a view on matters which are outside the scope of the expert evidence for which permission has been granted? Is the expert relying, impermissibly, on the opinion of others? Is the expert providing an opinion on disputed factual matters which do not require expert opinion to evaluate? Is the expert otherwise expressing a view on matters on which it is for the court to make a decision rather than for the expert to express a view?
- In all this, there are some obvious red flags: technical experts opining on the legal effect of contractual provisions is my personal pet hate.
- When reviewing the other side’s expert report, consider whether any passages in the report are inadmissible. If they are, think whether this is best dealt with by submission (the practical and pragmatic solution suggested by the reasoning of Moylett) or by an application to strike out the offending sections. Where the offending passages are only small sections which do not affect the rest of the report, dealing with this through submissions is more likely to be appropriate.
- When considering an application, timing is an important factor. There is nothing to stop a strike out application being made at any time. However, in my experience, judges are likely to be less receptive to an application to embark upon a lengthy red-lining exercise at the start of a trial. There will no doubt be a full timetable, and a considerable amount of the costs of preparing and responding to the evidence will already have been incurred. Tactically, it may be sensible to make any application at an earlier stage.