London Executive Aviation Ltd v Royal Bank of Scotland Plc

Expert evidence is admissible only where it derives from recognised expertise governed by recognised standards and is potentially capable of assisting the court. The court may exclude it where it is not helpful or is not reasonably required to resolve the proceedings.

Experts may address professional practice and factual context, but they must not construe legal rules, define the scope of legal duties, or express opinions on whether a cause of action such as negligence, deceit or breach of fiduciary duty is made out. In mis-selling litigation, the application of regulatory standards to the facts will usually be fact-sensitive and capable of assessment by the trial judge. A perceived imbalance between the parties, or a desire for greater confidence, does not justify disproportionate evidence that is unlikely to assist.

London Executive Aviation Limited applied for permission to call expert evidence in its proceedings against Royal Bank of Scotland Plc. The proposed evidence concerned suitability requirements, product risks, and whether the products sold to LEA were suitable or potentially appropriate.

The application arose in claims pleaded in deceit, breach of fiduciary duty and negligence, with the content of the bank’s duties said to be informed by regulatory rules, including COBS 9. The central issue was whether expert evidence was reasonably required to explain the products, the legal standards, or their application to the facts.

1. Applicable approach. Expert evidence may be admitted under section 3 of the Civil Evidence Act 1972 where there is recognised expertise governed by recognised standards and rules of conduct, the witness has sufficient familiarity with that expertise, and the opinion is potentially capable of assisting on an issue. Evidence may nevertheless be excluded if it will not help the court or is not reasonably required.
2. Limits of expert evidence. The construction of legal rules is for the court. Expert evidence cannot properly explain the meaning of COB or COBS rules, define the legal ambit of a duty, or state whether deceit, breach of fiduciary duty or negligence has been established. The risks associated with the products could be understood from the contractual and product documentation and did not require expert evidence.
3. Application to the facts. The judge accepted that applying the regulatory standards to the particular facts would be highly fact-sensitive. The trial judge would be well placed to determine how the rules applied to facts found at trial. Proposed evidence was liable to become an account of what the expert would have done in comparable circumstances, rather than evidence of recognised professional standards. The reasoning in St Dominic’s Ltd v Royal Bank of Scotland and Battrick v Royal Bank of Scotland did not warrant permission on the facts of this case; the court expressed no view on whether expert evidence had been appropriate in those cases.
4. Proportionality and fairness. The Civil Procedure Rules require expert evidence to be restricted to what is reasonably required. The likely increase in costs and trial length was disproportionate to any conceivable usefulness. A claimant’s preference for an expert or concern that there had not been a level playing field could not justify evidence that was not truly necessary.
5. The application for permission to call expert evidence was refused.