The Bombay High Court held recently that an expert invited to give his or her opinion on a case cannot apply the law to the facts of the case and offer a solution, but merely bring in their learning to bear upon the facts of the case, as the task of adjudication lies with the courts.
Justice SJ Kathawalla was hearing a notice of motion filed in a suit wherein plaintiff Dhirajlal Babaria is seeking to enforce a judgment dated September 21, 2010, of the district court, 14th Judicial District, Dallas County, Texas, USA, directing the defendants to pay a sum of $7.5 million.
The defendants have resisted the enforcement of the said judgment arguing that the Texas court does not have jurisdiction over them.
Why was Notice of Motion filed
The defendants had offered one Patrick Keel as an expert on Texas law during the proceedings. When the Affidavit in Lieu of Examination-in-Chief of Patrick Keel was tendered across the Bar on July 14, 2015, plaintiff’s lawyer senior advocate Darius Khambatta took exception to certain parts of the affidavit and submitted that they were inadmissible. Thus, these particular portions were sought to be expunged in this notice of motion.
Pointing to Patrick Keel’s affidavit, Darius Khambatta argued that he had commented upon the conduct of the plaintiff’s lawyer in Texas Court, Keel had also criticised the approach of the court in Texas. This, Khambatta argued, was not his role, thus the same was inadmissible in court.
While defendant’s counsel, senior advocate R. Narichania, argued that both the expert witnesses offered by the plaintiffs, Lawrence Mealer and Gregory Jones, made assertions in their evidence that the court in Texas had the jurisdiction to pass the said judgment against the defendants. Therefore, both the plaintiff’s experts committed the same transgression as Patrick Keel, hence the evidence of Patrick Keel cannot be expunged, Narichania said.
What Court said
The court noted the observations of the Supreme Court in Ramesh Chandra Aggarwal vs Regency Hospital Ltd. & Ors:
“It is not the province of the expert to act as Judge or Jury. It is stated in Titli v. Jones (AIR 1934 All 237) that the real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials.”
The court further noted:
What he [an expert] would not be entitled to do, is apply what he believes to be the foreign law in question to the facts of the case before him and to recommend a solution. That has always been within the exclusive province of the Court deciding the matter. This is to my mind is a point of distinction between foreign law as a body of learning and other scientific disciplines. A court, given its legal training, would be perfectly capable of applying foreign law, once it is ascertained, to the facts before it.
Thus, Justice Kathawalla allowed the notice of motion and ordered the said portions of the affidavit of Patrick Keel to be expunged.
The court also ordered the same standard to be applied to the evidence of the two expert witnesses offered by the plaintiffs at the stage of final hearing.
Read the Judgment Here