With a limited pool of experts to choose from, law firms face a number of challenges in choosing the right expert witness when it comes to banking, investment and insurance disputes. There may also be occasions where more than one expert is required to cover different areas of specialisation. Below Lawyer Monthly hears from Paul Rex at GBRW Expert Witness Limited, on the issues involved in filling the expert witness role in banking cases.
What are common cases you are instructed on as an expert witness?
Our company’s focus is on our core areas of banking, investment and insurance. These cover a wide range of activities, which I can illustrate by listing specific areas where we have provided expert reports:
Derivatives; Commercial property lending; Syndicated lending; Residential property lending; Trade finance; Structured finance; Banking operations; Borrowing frauds; Contributory negligence.
Investment managers’ responsibilities; Complex investments; Quantum calculations for alternative portfolios or investment scenarios; Fraud; Investment performance: analysis of a wide range of UK and non-UK investment portfolios; Market practice; Trading practices; Settlement procedures.
Insurance Broking, including brokers’ duties to clients on preparation of proposals, notification of insured events and other communications with underwriters; Underwriting decisions; Reports for insured parties and underwriters in cases where underwriters are seeking to avoid a policy; Disputes between insurers and reinsurers; and Personal insurance cover, including life and health insurance, residential property, PPI and motor claims.
Intellectual Property; Commodity Trading; Derivatives Trading; Consulting fees for financial sector assignment; and Employment issues, including loss of earnings (often following accidents), performance bonus disputes, severance claims and employee benefit packages.
What process do you undergo when first instructed on a case? Can you share with Lawyer Monthly your step by step process?
The starting point for most engagements is a phone call or email from a law firm setting out a brief outline of the expertise required, the background to the case and the timescale for expert evidence. Deadlines for preparation and submission of reports are one of the most important aspects of this first discussion.
At this stage we will gather enough background to form a view on what type of expertise is required and then talk amongst our management team and with potential experts to see whose CVs we will put forward. We also conduct a conflicts check, to establish whether we can proceed with the engagement.
This generally leads to more disclosure on the background to the case and expert evidence required.
The law firm will then talk to one or more of the candidates we have put forward in order to make their selection decision.
Once an expert has been selected, GBRW Expert Witness signs an engagement letter with the instructing law firm and a matching engagement with the expert concerned. The law firm issues a letter of instruction directly to the expert and communicates directly with him or her from that point.
We bill on an hourly basis and do not make any charge for the expert search.
The steps described above may take place over a period of weeks or even months, but may also take place very rapidly when the case requires it – a number of our engagements have been concluded within 24 hours from the initial enquiry. We consider that two of our key USPs are our ability to assess what experts are best matched to a law firm’s requirements and then to propose well-qualified candidates as quickly as possible.
As an Expert Witness, what challenges do law firms looking to find the right expert face? How do you gather your expert opinion in such cases?
The pool of competent experts in financial sector litigation is surprisingly small and law firms looking for expert witnesses or advisers face a number of challenges:
- Identifying the right expert in a specialised discipline
- Developing a short list of suitable candidates on a discreet basis
- Avoiding individual experts “shoe-horning” themselves into roles for which they are not properly equipped
- Assessing individuals’ strengths and weaknesses and prior track records
Our experience – as experts ourselves and from working with our associates over an extended period – normally enables us to propose one or more candidates whom we consider the best equipped to address specific issues on which expert evidence is required. On occasions, we may suggest using more than one expert where the requirements of the case cannot be covered by a single individual.
What do you think makes a good financial sector expert witness?
A combination of factors, which are relevant to the fields in which we operate:
- Breadth of experience in a number of financial institutions, ideally complemented by experience in industry bodies, training or advisory work. As a general comment, someone who has worked for a single organisation for their whole career will find it harder to comment definitively on industry practices.
- Experience in making presentations on complex professional issues. Examples which come to mind include Board, Credit or Investment Committees, client presentations, investor meetings and similar experiences.
- A rigorous approach to reviewing and evaluating documentation, which can sometimes run into hundreds if not thousands of pages.
- Mental resilience and the ability to think on one’s feet, both of which come into stronger focus in the minority of cases which involve cross-examination.
Is there anything you would like to add?
One of our major strengths is the activities of our affiliates GBRW Consulting and GBRW Learning, which often enable us to identify potential new experts when recent industry experience is important. These will not appear in the usual expert directories and websites.
We invest a lot of time in identifying and helping develop new experts. Our structured mentoring programme involves assisting them with research and presentation issues and carrying out a detailed critical review of their first draft and final reports. When required, we can also help prepare experts for the later stages of a dispute, such as experts’ meetings and cross-examination.
One key issue facing a new expert looking at their first case or two is the availability of PI cover, which is now essential since the Jones v Kaney ruling. Our mentoring approach also enables us to bring experts under the umbrella of GBRW Expert Witness’s PI policy when this is required.
GBRW Expert Witness Limited
T: +44 20 7562 8390 | M: +44 7710 324710
I am GBRW Expert Witness’s Managing Director and oversee its expert activities. I deal personally with lending and credit issues, which has included reports on banks’ analysis and approval procedures, trade finance and other forms of specialised lending. I’ve been cross-examined in several cases, most recently in the UK extradition hearing for the owner of Kingfisher Airlines in December last year. Of the 70 or so cases in which I’ve been involved, one of the most interesting was a dispute between two trade finance banks and the confectionery manufacturer Ferrero over a facility to finance the hazelnuts which went into the Ambassador’s favourite chocolates.
GBRW Expert Witness is a specialised practice based in the City of London which provides expert support, in the form of expert reports and/or advice, on banking, investment, insurance and other financial sector issues. This year our company celebrates our twenty-third anniversary of expert work. In the past ten years, our experts have worked on more than 600 cases involving civil and criminal court proceedings, arbitrations and mediations. Jurisdictions where we have worked include England and Wales, Scotland, Australia, Bahamas, Canada, Cayman Islands, Dubai, Hong Kong, Ireland, Jersey, New Zealand, Singapore, Sweden, Switzerland and the United States.