Mengiste & Anor v Endowment Fund for the Rehabilitation of Tigray & Ors

An expert must comply with the duties governing expert evidence, including independence, objectivity, proper expertise, and a clear separation between fact and opinion. Failure to comply may deprive the evidence of weight, although it does not necessarily make the evidence inadmissible. Where the issue concerns the fairness of foreign proceedings, the court should assess cogent evidence of risks such as judicial bias, while recognising the limits of adjudicating foreign law and practice. A renewed application in the foreign court may be the proper route for complaints that have not yet been raised there.

The claimants sought relief concerning proceedings in Ethiopia and relied substantially on the evidence of Mr Jones, an expert who had no previous experience of giving expert evidence. The defendants challenged the admissibility and reliability of that evidence and relied on Dr Haile’s greater academic and practical expertise in Ethiopian law and procedure.

The court considered whether there was cogent evidence that the claimants risked an unfair hearing in Ethiopia because of bias, including concerns relating to Judge Mehretab. It also considered the proper weight to be given to the competing expert evidence and whether the claimants should return to the Ethiopian courts to raise matters not previously placed before them.

1. Expert duties. The applicable expert protocol required appropriate expertise and experience, familiarity with the general duties of an expert, professional objectivity and impartiality, disclosure of qualifications, and a clear distinction between fact and opinion. The court found significant failures by the lawyers and Mr Jones in relation to those duties. His evidence was adjusted to support an existing belief and, save for two limited matters, carried no weight.
2. Admissibility. The defendants’ submission that Mr Jones’s evidence was inadmissible because his identity and qualifications had not been fully disclosed was rejected. The restricted disclosure created difficulties, but experienced counsel were able to test the evidence.
3. Competing expertise. Dr Haile possessed substantial academic and practical expertise concerning the Ethiopian courts and Ethiopian law. His evidence on procedure, law, bias, and reports concerning the judiciary was preferred. Criticism of his evidence did not require its wholesale rejection.
4. Fair hearing and foreign proceedings. The decisive concern was whether there was cogent evidence of a risk that the claimants would not obtain a fair hearing in Ethiopia because of bias. The court found no cogent evidence that the Ethiopian courts generally failed to apply the law correctly or that the hearings were unfair because of bias. The position concerning Judge Mehretab was difficult and unsupportable, but it had not been raised before the Ethiopian courts.
5. Proper forum and disposition. The court considered it inappropriate to sit in judgment on Ethiopian law and practice within this jurisdiction. The claimants should return to the Ethiopian courts and raise the newly identified issues. The proceedings were stayed to enable that course, relying on the limited evidence concerning a possible change in attitude by the Ethiopian Cassation Court.