The claimants’ expert, having previously agreed a joint expert report, gave notice on the day before the trial that he did not agree with two paragraphs of the joint report, although no explanation was given. In oral evidence the expert stated that he had not had time to thoroughly read the report before getting on a flight. However, the judge rejected this and found that the report had accurately represented his opinion at the time.
Although the court noted that the expert was entitled to change his mind, it was not clear from his evidence to what extent he had done so and the court accepted the opinion of the defendant’s expert that the unlawful acts of US troops at a time at which the UK troops had no meaningful control would be regarded by an Iraqi court as a cause “beyond the control” of the defendant. While under English law, the acts of both the UK and US troops would be regarded as causes of the harm given that the MoD would be deemed to have a duty of care to prevent the harm caused by the US troops, there was no evidence that this could be applied to Iraqi law.
The court concluded that under Iraqi law the seriousness of the alleged US acts “drowned out” the acts of the UK troops. Therefore the claimants must prove that the UK officials responsible for the handing over the civilians must have had one of the three following mental states at the time: either (1) an intention to facilitate the claimant’s ill-treatment; or (2) actual foresight that the claimants might suffer such ill-treatment, coupled with failure to act in accordance with a legal duty to protect the claimant; or (3) contemplation and acceptance of the risk that transferring the claimants would facilitate their ill-treatment.
A reminder that an expert who changes their opinion shortly before trial can expect a judge to treat their evidence unfavourably unless they can give a convincing explanation.
Joseph Carr & Ellen Lucas, Anthony Gold