Amr Danyall Marshal & Ors v Awais Javed & Ors

Forensic accountancy material which merely extracts, organises and summarises information from primary documents is ordinarily hearsay evidence of fact, not expert opinion evidence. It therefore does not require permission under Civil Procedure Rules 1998 Part 35. An accountant may give expert opinion only within a recognised expertise governed by recognised standards and rules of conduct. Legal conclusions, including a tracing methodology adopted as a matter of law, are for legal submission and determination by the judge. A report presented as evidence may raise issues under CPR PD 57AC, Appendix, paragraph 3.6; presented as submissions, it is not evidence and does not fall foul of that provision.

The claimants brought claims concerning monies allegedly transferred to the defendants for property investment. They sought proprietary interests in three properties, together with accounting and personal remedies. At a pre-trial review before trial, the court considered a forensic accountant’s report commissioned by the claimants. The report traced payments and expenditure from documentary records but did not address the parties’ competing contentions about the purpose of the monies. The central issue was whether that report constituted expert evidence requiring permission under CPR Part 35, and how its factual summaries and legal opinions should be treated.

1. Nature of the report. The report principally reviewed bank records and other documents, extracted information and reorganised it into tables and summaries. That was a classic forensic accountancy exercise, but it did not involve the exercise of expert opinion. The underlying documents remained the primary evidence and the report was, at best, hearsay evidence of fact.
2. Expert evidence. Under section 3(1) of the Civil Evidence Act 1972, opinion evidence is admissible only where the witness is qualified to give expert evidence on a relevant matter. The expertise must be recognised and governed by recognised standards and rules of conduct capable of influencing the court’s decision. Formal qualifications are not always necessary, since practical experience may suffice.
3. Expertise is issue-specific. A person qualified in one discipline does not thereby qualify to give expert evidence on matters outside that discipline. An accountant may be an expert in accounting matters, but not necessarily in property law, tracing law or other legal questions.
4. The accountant’s opinions that the claimants held beneficial ownership of property, and that a FIFO approach should be adopted in tracing payments, were opinions of law. They were not admissible as expert opinions. The factual payment history could be reported, but the legal consequences were matters for submissions and the judge.
5. It followed that the usual forensic accountant’s report in this case did not require permission under Civil Procedure Rules 1998 Part 35 because it was not expert evidence. If presented as freestanding evidence, it might encounter difficulties under CPR PD 57AC, Appendix, paragraph 3.6. If presented as submissions rather than evidence, it would not fall within that restriction. The court expressed no view on possible procedural amendments or on the application of the Civil Evidence Act 1995.

First-instance pre-trial review. The judgment itself does not state any prior appellate decision.