Litigation: expert witness and adviser
In the 1980s, I thought accounting firms should offer expert witness and forensic services. The idea was unheard of at the time and the firm I was with, Ernst & Young, took some persuading that there was a viable market for the service. But, with a little persistence, I was able to persuade them to give it a go. Persistence and persuasion have since become the hallmarks of my litigation work.
In one of the most complex trials which has ever taken place in the Commercial Court, Simon played a key role in developing winning strategies. George Leggatt QC, Brick Court
When it comes to giving evidence, there is no substitute for real expertise in the matter in hand. But before that – when the case is being analysed and arguments being developed – it sometime takes a different perspective to identify what is really at issue. Often, that is where I am at my most productive – bringing to bear the experience I gained from running a forensic department (click here for a couple of illustrations).
- In the early 1990s, the insurance market had its own version of the sub-prime mortgage problems we have all become familiar with recently. It was known as the “Lloyd’s spiral.” Fortunately, it didn’t result in worldwide economic catastrophe, but it did take some companies down. One such company was a reinsurer which was found to be insolvent very soon after it had been bought for a substantial sum. The buyer sued the firm who carried out the actuarial due diligence. Negligence or understandable ignorance? With some painstaking research, we were able to identify that, when the takeover occurred, the “spiral” was not foreseen. Later, once the effects were in plain view, many people claimed it must have been obvious. But there was no evidence in contemporaneous literature that anyone had behaved at the time in a manner which supported that assertion.
- Another insolvent finance company. This time, errors were found in the financial models which apparently led to a massive overstatement of the asset values. The auditors were sued. I was curious to know why the auditors hadn’t spotted the flaw. They said it was because the numbers looked fine. In fact, they pretty much were. That’s because there were two errors in the model, almost exactly self-cancelling. The real reason for the collapse of the business was something far more sinister.
This was a far cry from the usual experience of professional negligence. I suspected there was more to it than met the eye.
These two cases have something in common. With hindsight, the work had seemed indefensible. And yet, in both cases, the job had been done by top teams who had carried out their work diligently and without anyone suggesting something was awry. This was a far cry from my usual experience of professional negligence where I find that the junior members of the team had harboured unheeded concerns throughout. That is why – even though I had little direct expertise in the relevant fields – I suspected there was more to it than met the eye.
Over the past 25 years, I have been involved in a range of commercial disputes and regulatory or disciplinary enquiries in my role as expert or adviser. I have also experienced the High Court from the litigant’s perspective, in a David-and-Goliath dispute as chairman of a company suing a multi-national corporation. Click to see the breadth of cases I have worked on.
Assignments
- investor compensation claims
- Competition Commission enquiries
- contractual disputes
- disciplinary investigations
- post-takeover disputes
- professional negligence claims
- patent infringement damages
- competition and restrictive practices actions
- dispute between pension scheme trustees.
Clients
Solicitors I have been instructed by over the years include:
Simon was the expert behind the scenes, ensuring that all the technical content hung together. Truly invaluable and saved costs.
Stephen Netherway,
CMS Cameron McKenna
- Allen & Overy
- Barlow Lyde & Gilbert
- Clifford Chance
- CMS Cameron McKenna
- Davies Arnold Cooper
- Department of Justice (USA)
- Fasken Martineau
- Freshfields
- Reynolds Porter Chamberlain
- Sacker & Partners
- Simmons & Simmons
- Slaughter and May