The president of the Competition Appeal Tribunal has told experts not to submit ‘Disneyfied’ economic modelling, saying she has identified a concerning ‘blurring of the lines’ between expert evidence and advocacy.
The Honourable Mrs Justice Bacon said a practice direction on expert evidence brought in by the CAT last December signalled greater scrutiny of the ‘independence and objectivity’ of economist evidence, and tighter control of its volume and scope.
Speaking at a Frontier Economics litigation event last month, the judge said the practice direction makes clear that parties’ lawyers should not ‘seek to influence’ the content of expert reports, including joint reports. She added that in the future, the tribunal may order joint reports to be discussed and prepared by experts without any contact with the legal teams; an approach already used in Australia, where it is dubbed a ‘conclave’.
Bacon said: ‘Advocate economists are simply not helpful to the tribunal… it does not help if each expert treats the other as completely wrong about almost everything relevant to the case. Nor is it helpful for an expert to ignore obvious analytical points that are adverse to their client… [This] is self-defeating, in terms of the credibility of the expert. If the tribunal gets a sense that the expert is slipping into advocacy for their client, it inevitably becomes harder to trust the rest of that expert’s evidence.’
In relation to economic modelling, Bacon said the tribunal wants to see a ‘warts and all’ discussion that recognises the inherent limitations of the analysis, ‘rather than being presented with a Disneyfied version that is attractive on its face but ultimately not a compelling picture of reality.’
She added: ‘I believe the tribunal does have the expertise to deal properly with a “messy reality” and indeed is much more likely to be persuaded by that, than by an overly sanitised set of modelling results.’
Bacon also criticised the ‘elephantine’ size of economist reports, which increase the burden on legal teams and drive up costs. The new practice direction has therefore introduced page limits for expert reports at certification stage. ‘Shorter reports are almost always more useful, more relevant, and ultimately more persuasive,’ she said.
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