A judge was so irate with an expert witness that he complained about him to a disciplinary tribunal – which promptly dismissed his complaints as a lot of hot air
It has been a rotten 18 months for architect and arbitrator Michael Wilkey.

A couple of weeks ago, he appeared before a disciplinary tribunal of the Architects Registration Board. He was found not guilty on all charges and the complaint was thrown out. I confess to being delighted. This man's hitherto excellent reputation was in the balance.

The complaint came to the ARB from Mr Justice Jacob. He asked the board to investigate whether Mr Wilkey had failed in his duties when giving evidence as an expert in a trial (Pearce vs Ove Arup and others, November 2001), which came before Mr Justice Jacob. Politely the ARB told the judge that it "had the benefit of considerably more information and documents than were before him" in that trial. In other words, the tribunal thought the judge was wrong.

Let me just remind you what the trial was over. I wrote about it here (30 November 2001, pages 50-51). Architect Gareth Pearce accused another architect of plagiarising his designs and using them for a building called the Kunsthal in Rotterdam. The judge said Mr Pearce was an emotional man, whose vehemence and anger in the witness box made much of his evidence unbelievable. His conclusion was that there was no reason to suppose copying, and he dismissed the action.

The judge now used another 30 paragraphs of his judgment to explain how Mr Pearce's expert, Mr Wilkey, bore a "heavy responsibility for this case ever coming to trial". If Mr Wilkey didn't weep at what was said of him and his want of care as an expert, it would be a miracle. The judge gave the expert architect 21 days from the date of the judgment containing the criticism to explain himself, or else he would ask the solicitors to report him to the RIBA.

The ARB deals with complaints about architects and the ARB has a duty to protect consumers and safeguard the reputation of architects.

The judge used 30 paragraphs to detail Mr Wilkey’s failings. If he didn’t weep at what was said of his want of care as an expert, it would be a miracle

The hearing took two days before a tribunal of three. The tribunal began by setting out the duty owed by an expert witness. This is first and foremost to the court, rather their to their client and or whoever instructed them. They must not be biased.

Then it examined the judge's criticisms. First he was puzzled that the building in question had not been visited. The ARB said that it was not relevant to the dispute to visit the site. The dispute was all about plan copying. Of course, with hindsight (a wonderful thing, said the tribunal chairman), it would have been better for the expert's report to have said this. But this did not breach the civil procedure rules for experts in court. Nor was it serious professional misconduct.

The judge's second complaint was that the expert never properly read an important document exhibited with his report. But the ARB tribunal found that the document was not exhibited at all. There had been considerable confusion over this document and the judge had been inadvertently misled. There was no incompetence here.

The third complaint was that the expert did not inspect certain drawings at the Netherlands Architectural Institute. The snag with this one is that the expert had recommended that he did visit, but no instructions were given to him to do so. True, it might have been better to say this but that is hindsight again. No criticism was warranted.

The final matter that irked the judge was that the Mr Wilkey had said that anyone who rejected the accusation of plagiarism must be be lying. The worry here is that there is an accusation of perjury. But Mr Wilkey said no such thing in his written reports to the court. It was during an exchange from the witness box with the judge and with counsel in cross-examination that the word "lying" was used. These words did not originate from the expert. Again, with the benefit of hindsight, Mr Wilkey might sensibly have said, "That is not a matter for me as an expert witness. I do not think that I should answer the question". But the ARB tribunal again dismissed the charge of serious professional misconduct.