A Question for Bankers - Do I Need An Expert?

Article originally published in CIB News in July 2000

It was P.D. James who killed the Expert Witness. Fortunately not a regular occurrence. They often appear in Court Room and Police dramas to be ridiculed and revered in almost equal measure. Whatever your impression they are also an essential part of resolving many commercial disputes. Each expert helps one of the protagonists to understand the relative merits of their case and is also there to guide the judge through technical and practical issues that may be completely outside his or her own experience.

Obvious in the case of medical negligence, engineering failure and a whole range of other technical matters. But there are banking experts too. They are professionally qualified with years of experience. In addition many have been specifically trained to give written and oral expert evidence by, for example, The Academy of Experts (members use the designation MAE). Here are some examples of when you or your customer might need such an expert:

• You are in a dispute and someone needs to see the banking wood from the trees, grown by successive hands on the file. An internal investigation is not necessarily as impartial as one might suppose. A recognised expert will see the story from both points of view. It could save many hours or days of futile litigation.
• Litigation is under way and someone will be needed to explain some of the material to the court from an independent standpoint. The expert can help to deal with some of the issues in advance, and find the balance the court will be looking for. There are usually two sides, even in an argument where you know you are right!
• Your customer may simply not understand the bank's point of view. Advising them to seek the help of a banking expert and a lawyer quickly may save much anguish later.

Civil litigation has changed in many different ways since the Woolf reforms were introduced in April 1999. One objective was to reduce the need for expert evidence to be given in court, an expensive and time consuming process. Some thought the aim was to do away with the experts themselves - a slow lingering death, unlike the novel. In fact, it is now quite clear that Lord Woolf was trying to encourage litigants to bring in the independent viewpoint much earlier, so reducing the number of areas in dispute. A settlement, either via direct negotiation or mediation, then becomes a much more realistic possibility.

There will always be those who take pot shots at their bank as someone to blame, but sometimes a dispute simply gets out of hand. A clear, independent and early view of the rights and wrongs may save the bank a considerable amount of time, but, more importantly, help to prevent putting its reputation at risk.

Accredited experts will always identify whether they can genuinely give an opinion before taking a case on, and even that process can help to clarify some of the issues. HMC, The Academy of Experts or The Institute of Financial Services can help find the right person to work on a particular dispute. It does not matter whether the ultimate client is a bank, its customer or a third party involved in the transaction

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