In the High Court of England and Wales, it has been determined that a pirate attack and destruction of a ship named the Brillante Virtuoso were faked. Following extensive expert evidence, it was determined that the ‘pirates’ were allowed on board by the crew, and that the destruction of the vessel by fire was by arrangement.
This case has strong echoes of the famous case of the Ikarian Reefer, in which Cresswell J set out some well-known duties that experts should be expected to follow. Cresswell J found that the Ikarian Reefer had not been deliberately scuttled and run aground by its crew. The Court of Appeal found that he had given too much credence to the experts for the owners and reversed the decision.
A few quotations on expert evidence from the Brillante Virtuoso decision:
“There is a further reason for exercising caution when reviewing Mr. Lillie’s evidence. He tended when cross-examined to be somewhat defensive and to seek to argue a point in the manner of an advocate, that is, to attempt to recover lost ground. In like manner he had sought in his second report to disparage the views of the other expert marine engineer. Further, his opinion that “nothing about the Brillante Virtuoso fire fits the pattern of a deliberate attempt to scuttle the vessel” is the statement of an advocate, not that of an expert giving his opinion on a discrete aspect of a case which requires the assistance of an expert to be understood by the court. The impression I was left with after considering his reports and his oral evidence was that he saw his role, at least in part, as being to argue that this was not a case of scuttling as alleged by the Underwriters.“
“In the result I accept that, although Dr. Mitcheson sought in his reports to give his honest and expert opinion, the court should be circumspect before accepting his opinions where they are in issue. Experts have to be aware that litigants are anxious to advance their case through an expert’s opinion. They must stand back from the fray and view the matter objectively and disinterestedly. The more they find their opinions coinciding with the forensic interests of those instructing them, the greater the care they must exercise to ensure that the opinions they express are well founded and fully reasoned.“
“It is difficult for the Bank to suggest that the fire had resurged naturally because their own fire expert accepted that the only logical inference was that the diesel oil had been released deliberately. Neither a party nor the court is bound by what an expert accepts but there must be good reason for departing from that which an expert, who has plainly considered the matter carefully and fully, has accepted to be the case.“
The full, lengthy, judgment in the Brillante Virtuoso case can be read here: https://www.bailii.org/ew/cases/EWHC/Comm/2019/2599.html