Proportionality: Getting to the Bottom of High Technology Expert Evidence

Increasingly, getting sufficient information to enable a judge or jury to decide a case where high technology is concerned brings into question proportionality. The majority of serious crime cases require mobile phone evidence and computer evidence to be analysed.

In Civil cases involving the sale of high technology goods or services, it is often necessary to get right into the depths of the electronics or the software to establish what actually went wrong and to what extent that led to loss. This short article examines the issues and presents the difficulties faced by judges when admitting expert evidence in relatively small claims.

A few years ago I was instructed in a case where a sub-contractor had been engaged to do some electronic circuit board layout work. The actual circuit design had been completed in-house by the company itself and it now needed this design laid out on a circuit board for inclusion in their new product. The product had a tight window of opportunity being an important part of a racing car engine management system and was only going to be successful if it was ready in time for the next season.

The work was completed but at an early stage, others involved in the product expressed concerns about the design being overly and possibly unnecessarily complex. The product was introduced to the racing teams and failed spectacularly causing huge problems around the world. The company decided to redesign the product and a new circuit board layout was commissioned using the same sub-contractor. Again suspicions were aroused as to the complexity of the design and this time the company heeded the warnings and cancelled the design placing a new contract with a different sub-contractor. The original sub-contractor demanded payment in full but was only offered a part payment as the work had not been completed and was felt to be of no value. The sub-contractor sued for the payment which was well under £15,000. At this level the matter was ideally placed for progress through the County Court but the company counter-claimed for the huge cost to them of the lost season and their wasted costs. The counter-claim was a 6 figure sum and so the matter progressed towards the Technology and Construction Court in London.

Expert evidence was required to understand what caused the failure of the product. The counter-claim was among other things for negligence. I was one of two experts instructed by the parties. We met on a number of occasions but it was difficult to get into the detail. The product was complex electronically and modes of failure were difficult to establish with certainty. There was software involved and if this was not to be suspected, it needed to be ruled out. Many other possible contributors to possible product failure also had to be considered and if appropriate dismissed. Expert reports were exchanged with both experts agreeing that there were issues with the circuit board layout but the expert for the Claimant felt there was not enough evidence to conclude the circuit layout was solely to blame. In any event, he felt those design engineers in control of the project should have checked everything carried out by others in the design team.

From experience, I instinctively knew there was something not right about the circuit layout but at first I could not see what it was. There were many minor issues with the layout which suggested the designer was out of touch with modern high-density circuits. Expert reports, joint statements and reports in reply were exchanged and gradually we homed in on the areas of the design that were suspect. Eventually, I spotted the problem. A relatively new component with very densely packed connections had not been laid out as recommended by the manufacturer and consequently the connections to it were overly complicated and required the printed circuit board to be manufactured at the limits of current technology. In my opinion, this led to the failures in the field.

The trial had dragged on over several months, stopping and starting. There was a robust denial that my findings proved the matter and so I constructed a magnified three dimensional model of the small part of the circuit that had led to the problems. In my opinion, this immediately showed where the problems lay. The company successfully defended the sub-contractor’s claim for his fees but the cost of getting to the reasons for the failure was so disproportionate to the original claim that in fact, neither side won.

Reflecting on the case, it is difficult to see how, without the will to settle matters in mediation or other ADR, anything else could have been done to get to the answer more efficiently. As smaller and smaller products involve more and more complex electronics, software and high technology generally, establishing causation through the use of experts can only get more difficult in the future.

The case judgment can be read here.