The Dekagram: 1st September 2025

There seems to be a never-ending supply of judgments in which experts come in for criticism. This week is no exception, although as a change the judge in the latest case also criticised two of the defendants for failing to give evidence at trial, and for failing to effect proper disclosure.

As well as reading all about Ukrainian banking, the team has been busy celebrating; not only has Anirudh Mandagere joined Tom Yarrow on the Attorney General’s C Panel (civil), but Tom Collins and Dominique Smith have been appointed Deputy District Judges. All will continue to run their highly successful cross border practices alongside these prestigious commitments.

Experts in the Dock, Again: JSC Commercial Bank Privatbank v Kolomoisky & Others [2025] EWHC 1987 (Ch)

In recent months there has been a spate of judgments featuring judicial comments adverse to experts. In JSC Commercial Bank PrivatBank v Kolomoisky & Others [2025] EWHC 1987 (Ch) it was Trower J’s turn to shift an expert from the witness stand to the dock.

The claim arose from the insolvency of Ukraine’s largest bank, Privatbank, which was nationalised in December 2016. The newly nationalised bank alleged that two of its founders had been involved in the fraudulent misappropriation of US$1.9 billion prior to nationalisation, and brought a claim in the English courts against them as individuals and against various of their companies.

In a bumper judgment running to some 490 pages (we read these things so you don’t have to), Trower J grappled with sundry issues of fact and (Ukrainian) law, most of which fall beyond the scope of this Dekagram.

The lay evidence

In considering the claim Trower J was hampered by the fact that the two individuals sued by the bank did not give evidence, and by a dearth of documentary evidence as to the transactions which were the subject of the claim. As he commented at [46]:

“…there are many aspects of what occurred on which there is no direct documentary or oral evidence. In part, this is because the documentary record was demonstrably deficient in a number of highly material respects, and it is clear that much documentation which did exist has either been destroyed or suppressed. It was also because there was a dearth of witnesses; many who could have given evidence on issues central to the Bank’s claim were not called to do so…”

The claim relied therefore to a large extent on circumstantial evidence, and as the Court of Appeal said in JSC BTA Bank v. Ablyazov & Others [2012] EWCA Civ 1411:

“It is, however, the essence of a successful case of circumstantial evidence that the whole is stronger than individual parts. It becomes a net from which there is no escape. That is why a jury is often directed to avoid piecemeal consideration of a circumstantial case”.

The same applies in the civil courts, although of course the burden of proof is less onerous.

Against this background, the individual defendants chose not to give evidence at trial or to call witnesses whom they had identified and, in some cases, from whom they had taken statements. In Efobi v. Royal Mail Group Ltd [2021] UKSC 33 at [41] Lord Leggatt JSC set out the approach to be taken to drawing adverse inferences from the absence of a witness:

“The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria …. … I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.”

Trower J, at [55],

“…reached the clear conclusion that the Defendants’ decision not to call any witnesses was made, anyway in part, because of a well-founded fear that their own roles in the Misappropriation would be more likely to be exposed during the course of any cross-examination were they to do so…”

By contrast, he accepted that the witnesses who gave evidence on behalf of the bank at trial were attempting to assist the court.

Similarly, ‘it is clear that relevant documents which may have been available in the past are now no longer available, and that many of the events which occurred were either never evidenced by disclosable documents or were evidenced in a form which has not survived’ [146]. Trower J took a dim view of this [156]:

“…Taken in the round I think it is fair to summarise Mr Kolomoisky’s attitude to the Bank’s efforts to obtain that documentation and the compliance by him with his duties to make proper disclosure as being that “he would delay and obfuscate for as long as possible in the hope that these documents would not come out”. But I think that what occurred also betrayed a mindset which sought to make the disclosure process as painful as possible for the Bank, while drip-feeding material to give the impression that he was complying with his obligations. I have no confidence that the Bank has seen all of the surviving documentation in Mr Kolomoisky’s control which relate to the issues for disclosure in these proceedings…”

The upshot was that the court concluded that the defendants had not made proper disclosure of documents within their control, and had unjustifiably failed to attend trial to give evidence or to call relevant witnesses to give evidence on their behalf. The court was prepared to draw adverse inferences from these decisions.

The expert evidence

The bank and the individual defendants relied on the expert evidence of forensic accountants. The bank’s expert was criticised by the defendants as being ‘a glorified calculator’ (‘and what’s wrong with that?’ you may ask), a criticism the judge rejected. He was, perhaps understandably, much more receptive to the bank’s criticism of Mr Kolomoisky’s expert, Mr Davidson [311-314]:

“At the time of their reports, each of the experts was a fellow of the Institute of Chartered Accountants of England and Wales (“ICAEW”). During the course of July 2023, after the trial had commenced but before he was called to give evidence, it came to the attention of the Bank’s solicitors that Mr Davidson’s status as a member of the ICAEW was now recorded as Ceased with a sub-status recorded as Cessated. They wrote to Mr Kolomoisky’s solicitors drawing attention to the cessation and attaching a copy of his disciplinary record which disclosed that he had been the subject of a severe reprimand in relation to two disciplinary matters in respect of which there had been hearings on 8 March 2023. None of this information had been disclosed by Mr Davidson either to the Bank or to the court.

Mr Davidson’s explanation for what had occurred was eventually revealed on 29 September 2023, five days before he was due to give evidence on the recommencement of the trial after the long vacation. He made a witness statement, describing it as being in anticipation of questions he expected to be asked in cross-examination. He disclosed that he had been the subject of two complaints in June and August 2021 in respect of which no disciplinary proceedings had been initiated against him, and that the matter in which he had been severely reprimanded was a failure to provide the ICAEW with responses to those complaints. He also disclosed that the Charity Commission had removed him as trustee of two charities and that those charities had been the subject of statutory enquiries by the Charity Commission. In his witness statement, Mr Davidson also gave notice that he would rely on his privilege against self-incrimination to justify his refusal to answer any questions about the August 2021 complaint to the ICAEW and the Charity Commission inquiry.

In light of the position adopted by Mr Davidson, it was not possible for the court to obtain a full picture of what had occurred or the extent to which the matters in respect of which he had been investigated or criticised might have been relevant to the quality of his evidence. However, he accepted in cross-examination that there was no excuse for his failure to provide the information sought by the ICAEW disciplinary committee (although he did not accept that his conduct amounted to a deliberate breach of the rules).

In my view, where an expert presents his evidence as a member of a professional organisation, which is expected by him to give the court assurance as to his ability to act in the case, he is under a duty to inform the court if his membership has ceased, more particularly where the cessation is linked to disciplinary proceedings against him. Mr Davidson accepted in cross-examination that he knew that his presentation as a member of the ICAEW would give the court that assurance, but he had no explanation as to why he did not voluntarily inform the court or the Bank of the fact that he had ceased to be a member with effect from 19 April 2023. The manner in which Mr Davidson approached this issue casts real doubt on his ability to be open and straightforward on matters which might affect the court’s assessment of the reliability of his evidence as an independent expert. More particularly it undermined the court’s confidence in his ability to give precedence to his overriding duty to the court when faced with other conflicting interests. It seems to me that this is a particularly significant failing when taken together with the fact that Mr Davidson also failed to disclose that he had been the subject of a finding in another case that his opinion was based on wholly unsupported and fanciful assumptions, which ignored the objective facts and undermined his credibility as an independent expert (per Leggatt LJ in Al Nehayan v. Kent [2018] EWHC 333 (Comm) at [195]).”

The foreign law expert on which Mr Kolomoisky relied came in for similar criticism. In a passage which echoes recent findings of other judges in relation to other experts, Trower J, at [809 – 812], set out the issues with his evidence:

“…he found it difficult to honour his duty to assist the court when faced with the need to make concessions which were liable to damage Mr Kolomoisky’s case. Sometimes this was apparent from unreasonable intransigence and on other occasions this was apparent from fairly obvious evasiveness in not addressing the issue about which he was being asked… there were a number of occasions…on which Mr Alyoshin misrepresented the substance and effect of other opinions on which he relied in support of his evidence. Sometimes this amounted to the suppression of parts of academic articles which were inconsistent and even directly contradicted the views which he said the authors had espoused. On other occasions…he suppressed his own earlier opinions given in other contexts… his independence was undermined by the existence of a longstanding relationship between his firm (and himself) and Mr Kolomoisky dating back to 2013. This involved advice in relation to other legal disputes as well as to advice in relation to these proceedings…”

It may perhaps come as no surprise to readers given the tenor of the passages from the judgment quoted above that Trower J concluded that the claim should succeed, with the defendants jointly and severally liable to the bank.

Conclusion

As well as providing a fascinating insight into the Ukrainian banking sector, the judgment acts as another reminder to parties, their representatives and experts that in litigation, strategy is key. Decisions taken at an early stage – whether to try and avoid making full disclosure, whether to produce witness statements from witnesses later abandoned, whether to give evidence at all – can and often do have far reaching consequences later in proceedings. Moreover, choice of expert can be crucial, particularly in a case where expert evidence goes to the heart of the claim – cases in which the applicable law is that of a foreign jurisdiction being one good example, and cases involving the application of local standards being another. In such cases it remains of the foremost importance that the expert instructed is not only in good standing with his or her professional body, but remains so to trial, and that (s)he has not previously been the subject of criticism by the English or foreign courts. Checking that this is and remains the case may be yet another action to be added to the ever-growing checklist for trial for diligent practitioners; it is becoming increasingly apparent that judicial patience with inadequate experts with little understanding of their duty to the court has finally run out.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories as a Band 1 practitioner in travel law for many years, and, more recently, listed in aviation as well. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.