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No try: Expert evidence is only as good as the supporting assumption

In this article, Caitlin Meynell, Manager from our Melbourne office, considers a case where the expert had the appropriate level of expertise, but her evidence was unclear about the source of her facts and assumptions.

Insights No try: Expert evidence is only as good as the supporting assumption
Thursday, 27 September 2018
Beagle v Australian Capital Territory and Southern New South Wales Rugby Union Limited  [2016] ACTSC 271

In this judgment, the expert had the appropriate level of expertise, but her evidence was unclear about the source of her facts and assumptions. Consequently, her evidence was found to be unreliable.

Background

John Beagle, the plaintiff, brought a quantum meruit claim seeking reasonable remuneration for assistance that he allegedly gave to the Australian Capital Territory and Southern New South Wales Rugby Union (‘the Brumbies’). Mr Beagle alleged he assisted the Brumbies in securing a sponsorship deal from the Aquis group of companies (‘Aquis’) and that a person performing that role ought to receive a commission of 10 to 35% of the value of the sponsorship.

Counsel for the Brumbies submitted:

“It needs to be said that Mr Beagle is a bit of a one of a kind in this sense, that he comes across as a person who sees the world and his position in it in a particular way and that’s to be respected, but it isn’t the way the rest of the world sees things. That’s illustrated by the fact that everybody who he came in contact with, on the evidence, found that he ended up wasting their time and that he was, in the words of one or two, a little bit odd.”

Justice Mossop found that although Mr Beagle was the first person to directly make the connection between Aquis and sponsorship of the Brumbies, that alone was not enough to demonstrate the it was due to Mr Beagle’s services that the relevant sponsorship was ultimately obtained. Justice Mossop went on to say:

“In my view, if the position is that Mr Beagle objectively made no causal contribution to the obtaining of the sponsorship then the mere fact that a sponsorship arose is not sufficient to give an entitlement to remuneration.”


The expert evidence


Mr Beagle called expert evidence from Ms S, who described herself as a corporate sponsorship consultant, in relation to reasonable remuneration for securing sponsorship deals. Justice Mossop accepted that there was a level of specialist knowledge that Ms S had attained over her years of experience.

Ms S prepared two reports. The first was based on the publicly announced value of the sponsorship, with the second being updated after receiving the actual sponsorship agreement. Each report stated it was prepared in compliance with the expert witness code of conduct as per the Court Procedures Rules 2006 (ACT).

In her first report, Ms S calculated the level of reasonable remuneration as $700,000. With the benefit of the actual sponsorship agreement, this figure was reduced to $587,000 in her second report. The ultimate submission made to the court for Mr Beagle’s reasonable remuneration was a figure of $250,000, calculated largely based on accepting the rationale for reasonable remuneration articulated in Ms S’s second report. That rationale was, in part, arrived at with reference to a separate agreement signed between the IMG agency and the Brumbies called a ‘Sponsorship Introduction Agreement’.

Justice Mossop took issue with elements of Ms S’s expert evidence, ultimately dismissing it for two reasons.

Firstly, Justice Mossop concluded that there was a significant difference between the position advocated for by Mr Beagle and the commercial rates typically paid to sponsorship brokers. Justice Mossop found that Mr Beagle was not performing services as part of a business and, ultimately, his position was not the same as the commercial nature of an agency such as IMG. Therefore, expert evidence of the amounts paid to commercial agencies was not relevant to what someone in Mr Beagle’s position ought to receive.

Secondly, Justice Mossop found Ms S’s assumptions to be contrary to the evidence put forward during the trial, yet the source of her assumptions was unclear:

“There was a significant degree of uncertainty as to precisely where the ‘facts and assumptions’ identified in her first report had come from. Several critical matters were clearly not derived from the terms of her letter of instructions.”

“The inadequate foundation for her opinion extended to her identification of various factors in favour of higher levels of remuneration … None of these considerations are consistent with the facts.”

For example, Justice Mossop noted Ms S:
  • Appeared to have access to information similar to what was contained within the affidavit of Mr Beagle, however this affidavit was prepared subsequent to the date of her report.
  • Described Mr Beagle as having provided “intelligence [that] would have been critical” to the sponsorship. This was contrary to Justice Mossop’s findings that “Mr Beagle was perceived as being disorganised and providing no information that [Aquis] had not already been able to obtain by basic internet research. It is not clear why [Ms S] assumed or found that the ‘intelligence’ would have been ‘critical’ to closing the sale.”
  • Assumed Mr Beagle was a “trusted advisor … with credibility and expertise.” This was not established at trial in any way.

In addition to the above, Ms S was asked to adopt assumptions in her instruction letter which were ultimately not proven at trial. This was not a criticism of Ms S, but something that reduced the reliability of her report.

Consequently, Justice Mossop did not accept her evidence as reliable for establishing what reasonable remuneration would be for the services provided.

Significance

Expert evidence is often dependent on the facts and assumptions upon which it is based. When those facts are unclear, or unable to be proven, the expert evidence is of limited utility.

For that reason, legal practitioners should work with experts to ensure their reports clearly set out the underlying facts and assumptions, and determine whether they can be supported during a trial.
 

Editor’s note: This judgment was appealed, as set out in Beagle v Australian Capital Territory and Southern New South Wales Rugby Union Limited [2017] ACTCA 29. The appeal judgment provided additional detail in relation to the expert evidence set out above but did not change the outcome of the case.

This case review is an extract from Expert Evidence: Recent Cases Edition 2.
 


About KordaMentha Forensic

At KordaMentha Forensic, we uncover, analyse and clarify facts at the centre of disputes, investigations and other sensitive matters. We have one of the largest teams of forensic investigators, forensic accountants and forensic technology specialists in Asia-Pacific. Our experts are regularly called on to provide evidence in high-profile disputes and investigations.