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

By way of preliminary I should refer to the protocol for the instruction of experts (CPR Volume 1 pages 1017 and following).

As I have said in the open judgment there have been significant failures on the part of the lawyers and Mr Jones in respect of this duty. I cannot believe there was any serious discussion between the solicitors and Mr Jones about his role and his duties.

I refer to the expert duties under paragraph 4. Mr Jones failed to comply with that provision numerous times as set out below. I refer to paragraph 7 which requires various items should be established before an expert is instructed:-

That they have the appropriate expertise and experience.

They are familiar with the general duties of an expert.

They can produce a report, deal with questions have discussions with other experts within a reasonable time and at a cost proportionate to the matters in issue.

Where they are available to attend the trial if attendance is required.

Under paragraph 8 those instructing the expert should ensure when they give instructions the following (inter alia):-

The nature and extent of expertise which is called for.

In paragraph 13.2 the expert’s reports should be prepared with the expert maintaining professional objectivity and impartiality at all times.

Paragraph 13.6 requires the expert’s qualifications to be set out.

Paragraph 13.9 requires the expert to keep fact and opinion separate and discreet and identify the facts whether assumed or otherwise upon which their opinions are based and must clearly distinguish between those facts which the expert knows to be true and those facts which they assume.

By way of preliminary in their closing they objected to the entirety of Mr Jones’ evidence as being inadmissible without the identity and qualifications being fully disclosed. By that the Defendants mean disclosed to those who instructed them and their expert. I rejected such a submission and the evidence that Mr Jones gave was released only to Mr Spink QC and Mr Assersohn. I have already accepted that posed great difficulties upon them but in the end as one would expect from experienced members of the Bar they conducted the exercise to the best of their ability and were largely successful. Mr Jones’ credibility as a witness was comprehensively destroyed.

I have referred to the examples they gave in paragraph 147 of their closing and their complaints about his statements in respect of the Inventory (paragraph 148).

Following the securing of the adjournment in May for the purpose of Mr Jones to construct an expert report on the basis that the Inventory was not binding and conclusive he used that opportunity to firm up his evidence in other areas and produced a memorandum of 10^th August 2012. I refer again to the criticisms of Mr Jones in that regard in paragraphs 150-156 of the Defendants’ closing.

Similarly the Defendants criticise Mr Jones in relation to paragraph 29 of his second report (paragraphs 158-164).

I accept all of that criticism is well founded. It made Mr Jones’ evidence completely irrelevant in relation to the issues which he ought to have been giving evidence on, namely whether there was any basis in his opinion for the Claimants’ contention that they could not obtain a fair trail in Ethiopia.

Mr Jones had never given expert evidence before in any forum.

Mr Jones was completely unprepared for the exercise. I refer again to the failings identified above and as set out in the public judgment. This was unfortunate because I do not believe the blame should be laid entirely at Mr Jones’ door. I say “entirely” because despite the nature of the duties being explained to him during the course of his evidence he was still coloured in my view by his belief that EFFORT was a political heavyweight that could do whatever it wishes. As I have said in the open part of the judgment this is a point that the Claimants still cling to although there is no basis in the evidence for it whatsoever. Mr Jones fell into the error of having a belief and adjusting his evidence to support that belief.

As the Defendants submit (paragraph 7b) they were unable to investigate Mr Jones’ background so as to seek to ascertain whether there might be any reason for him to hold personal, political or other views that might influence his evidence. It is possible that he had those views and that influenced his expert report. Equally whilst he might state he had fears, because there is no background material to justify that it could not be said on the evidence that his fears were justified.

Thus as the Defendants set out in paragraph 17 of their closing Mr Jones had none of the experience that any practising lawyer in this area would have had.

This led him inexorably to conclusions on the decisions in the Ethiopian Courts which I do not believe an experienced practitioner would have made. Once again I have commented in my open judgment that I read the judgments and they seemed to me to be reasonably comprehensible and reasonably fair and did not show any bias against the Claimants whatsoever.

I have already commented in the main judgment in Mr Jones’ decision to nail his colours to the mast of the Inventory and the spectacular de-masting that occurred of that reliance.

This leads me to conclude that both as a result of his private examination and the matters that are set out in the public judgment that Mr Jones’ evidence carries no weight whatsoever save in the two respects identified in the open judgment. The first of those is the activities of Judge Mehretab. The second of those is in relation to the revised case on the Inventory although it did not have the supposedly spectacular results put forward in Mr Jones’ initial reports. Relying on his evidence of the Fissehaye potential it is appropriate for the reasons I set out in the open judgment to stay the proceedings to enable the Claimants to go back to the Ethiopian Courts. That is the only aspect of Mr Jones’ evidence that I accept.

Although I have put the review of Dr Haile’s evidence in this confidential part I have done so merely for the purpose of placing it side by side with the criticisms of Mr Jones. I accept that the review of the evidence of Dr Haile in this part can be made public.

The Claimants criticise his evidence in paragraphs 37-38 of their closing.

I have already observed the unusually prescient observation in paragraph 38:-

Whilst it is true Dr Haile also adopted an argumentative response to questions it paled into insignificance when compared with the performance of Mr Jones.

Further unlike Mr Jones, Dr Haile has considerable academic and practical expertise in relation to the Ethiopian Courts and the application of Ethiopian law. I refer to paragraphs 9-20 of his first report which sets out his professional experience. Although the Claimants criticise this in their closing above the criticisms are small when compared with his overall expertise and become irrelevant when one considers Mr Jones’ lack of expertise.

I have accepted that the Claimants have a legitimate concern about the role of Judge Mehretab in the proceedings. I accept that Dr Haile in his report and his evidence tried to support her role in the case and did not accept the criticism. Nevertheless that does not mean that I reject his evidence entirely. His evidence on the procedure and law in the Ethiopian Courts was in my view impressive. Equally impressive was his commentary in relation to the various reports which had been provided to me concerning the developing status of the Ethiopian judiciary. I have accepted that evidence and I am not persuaded that there is any cogent evidence which suggests that the Ethiopian Courts did not apply the law correctly nor that the hearings were unfair to the Claimants because of bias. As I have commented above the position of Judge Mehretab is a difficult one but no complaint has been made to the Ethiopian courts about her role because the Claimants gave evidence (which I have accepted) that they did not know of her relationship with Mr Gebrue.

I refer to the Defendants’ closing (paragraphs 196-203). That the analysis contained there of Dr Haile’s evidence is something which I recognise and I accept.

Merely because the Claimants established points of criticism of Dr Haile does not mean that I reject his evidence completely. For the most part I found his evidence persuasive especially on the bias issues. Those are the key issues in this case. If the Claimants fail to establish there is cogent evidence that there is a risk that they will not obtain a fair hearing in Ethiopia because of bias against them their present applications will fail. The criticisms of Dr Haile almost entirely relate to matters of the procedures of the Courts and disputes between him and Mr Jones as to Ethiopian law. As I have observed in the main part of the judgment I did not think it was appropriate specifically to sit in judgment on Ethiopian law and practice within this jurisdiction. The proper forum for these as I have said in the main part of the judgment is a renewed application by the Claimants to review what went on in Ethiopia raising the new issues identified in the main part of this judgment.

It follows therefore that I do not accept the criticisms of Dr Haile lead to a conclusion that his evidence should be rejected. His evidence is easily to be preferred to that of Mr Jones. Mr Jones’ evidence was completely destroyed save in respect of the Fissehaye issue. Even that as the Defendants have shown in their closing was raised by him very late in the day and was contrary to the earlier testimony he had given in reports and in his personal cross examination. Notwithstanding that apparent weakness it seems to me clear that given his evidence of a burgeoning willingness of the parts of the Cassation Court to look at the “justice” of a case rather than procedural rules the Claimants should explore whether or not Mr Jones is right in his perception of the change of attitude of the Ethiopian Courts. On no other issue save Judge Mehretab where there was a conflict between Mr Jones and Dr Haile do I accept Mr Jones’ evidence in preference of that of Dr Haile. Even on the Judge Mehretab case it must be appreciated that the initial pleaded case was that she was only involved in the case of one of three sitting at the review stage. The evidence of the other involvement came out during cross examination of Dr Haile and did not feature in any evidence. Although the Defendants complain about this in their submissions I reject that complaint. The position of Judge Mehretab is plainly unsupportable but the remedy again is to go back to the Ethiopian Courts and raise it for the first time.

In summary therefore I have accepted Dr Haile’s evidence in the main.