“Each of the Applicants and the Authority are permitted to rely on written reports and oral expert evidence from (i) an expert in statistics; and/or (ii) an expert in relation to defined benefit pension transfer advice.”
“(1) Subject to the provisions of the 2007 Act and any other enactment, the Upper Tribunal may regulate its own procedure. (2) The Upper Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.”
“(1) Without restriction on the general powers in rule 5(1) and (2) (case management powers), the Upper Tribunal may give directions as to— (a) issues on which it requires evidence or submissions; (b) the nature of the evidence or submissions it requires; (c) whether the parties are permitted or required to provide expert evidence, and if so whether the parties must jointly appoint a single expert to provide such evidence; (2) The Upper Tribunal may— (a) admit evidence whether or not— (i) the evidence would be admissible in a civil trial in the United Kingdom; or (ii) the evidence was available to a previous decision maker; or (b) exclude evidence that would otherwise be admissible where— (i)-(ii) … (iii) it would otherwise be unfair to admit the evidence.” (a) issues on which it requires evidence or submissions; (b) the nature of the evidence or submissions it requires; (c) whether the parties are permitted or required to provide expert evidence, and if so whether the parties must jointly appoint a single expert to provide such evidence; (a) admit evidence whether or not— (i) the evidence would be admissible in a civil trial in the United Kingdom; or (ii) the evidence was available to a previous decision maker; or (b) exclude evidence that would otherwise be admissible where— (i)-(ii) … (iii) it would otherwise be unfair to admit the evidence.”
“(1) Subject to any rules of court made in pursuance of this Act, wherea person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence. (2) It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived. (3) In this section ‘relevant matter’ includes an issue in the proceedingsin question.”
“(1) It is the duty of experts to help the court on matters within their expertise. (2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.”
“2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation. 2.2 Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.”
“An expert’s report must be verified by a statement of truth in the following form - I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”
“…in 2019-2020, the Authority requested and assessed a statistically representative sample of 17 of HDIFA’s Pension Transfer files…against the relevant rules in COBS…relating to suitability. The results of the Authority’s file reviews revealed the following: (1) Failure to collect the necessary information to give Pension Transfer advice in 100% of cases, with the consequence that in 71% of total cases the Authority was unable to assess whether Ms Dunne’s advice was suitable (2) Ms Dunne gave unsuitable Pension Transfer advice in 100% of those casesit was able to assess for suitability (3) Ms Dunne failed to provide the required disclosure to the customer in 100% of cases.”
“In 2019-2020, the Authority requested and assessed a statistically representative sample of 17 of HDIFA’s pension transfer files from the Relevant Periods against the relevant suitability rules in COBS...The file reviews were carried out by Grant Thornton UK LLP (“Grant Thornton”) under the instruction of the Authority and details of the experience and qualifications of the individuals who conducted the file assessments for Grant Thornton have been provided to Ms Dunne.”
“Each of the Applicants and the Authority are permitted to rely on written reports and oral expert evidence from (i) an expert in statistics; and/or (ii) an expert in relation to defined benefit pension transfer advice.”
“We are writing to inform you that the Authority has today been made aware that its expert in defined benefit pension transfer advice, Rebecca Prestage, is no longer working at Grant Thornton. Ms Prestage is herself apensions transfer specialist and also managed the team of pensionstransfer specialists conducting the file reviews the Authority relies on inthese proceedings… We are currently working with Grant Thornton to explore the options available to us in respect of this expert report, but in light of this event we anticipate that we will require an extension to the7 November 2025 date for the filing and service of this report.”
“it has been agreed that Ms Prestage will continue to prepare the expert report on a consultancy basis. However, due to the changes in Ms Prestage’s employment, there has been a delay of two-and-a-half days while we confirmed with Grant Thornton whether Ms Prestage would be available on a consultancy basis and instructed Ms Prestage on that basis.”
“I have been instructed to give this expert report by the Financial Conduct Authority (“Authority”) in relation to the above matter before the Upper Tribunal. I have been assisted in the preparation of this report by certain members of GT's staff, working under my supervision, and this is reflected in my reference to ‘we’ when appropriate. However, I confirm that the opinions expressed are my own.”
“In December 2020, we were provided with Ms Dunne’s responses to five DBAAT reviews where we had made a finding that the advice was unsuitable…Where appropriate, these responses were factored into our assessments that were contained in the DBAAT assessments.”
“In addition to giving my views on the comments made by Ms Dunne, I was instructed to detail the findings and rationale behind the original assessments made during the file reviews so as to give a comprehensive picture on how the advice given to the clients in the sample had been assessed and the DBAAT outcomes arrived at.”
“We conducted the review with an experienced project team of case triage handlers, pension transfer specialist (“PTS”) assessors, quality assurance (“QA”) reviewers and project management personnel.” “Reporting of finalised outcomes consolidated into a summary spreadsheet, and relevant management information, was provided by our project management team, to allow the Authority to effectively monitor the progress of file reviews in January 2020.” “I did not personally conduct file reviews, but I had QA oversight responsibilities for all the client files that we reviewed, and I have the necessary expertise to opine on the suitability of the advice given to the clients.” “We used the first section of the DBAAT to assess whether the firm had complied with the applicable information gathering requirements…We used sections two and three of the DBAAT to assess the suitability of the pension transfer advice and any associated investment advice…We used the Disclosure section of the DBAAT to assess whether the firm had complied with the applicable disclosure requirements,” “We were instructed to review 16 DB pension transfer advice client files from Heather Dunne, trading as HDIFA…we were unable to assess the suitability of the advice in 12 cases due to insufficient or non-compliant information gathering.” “In our causation assessment, we concluded that HDIFA’s non-compliant conduct caused clients to transfer benefits from DB schemes with safeguarded benefits to schemes with flexible benefits.” “Following calibration discussions with the Authority, and to ensure a consistent application of the assessment methodology across all firms in the review, including all cases from HDIFA, we re-considered the files and decided that the absence of key information about the proposed receiving scheme was material to our assessment.”
“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.”
“I, Rebecca Prestage, declare that: i. I understand and have complied with my duty as an expert witness is to help the Tribunal on matters within my expertise. ii. I understand and accept that this duty overrides any obligation to the Authority. iii. This Report includes all matters relevant to the issues on which my expert evidence is given. Although this Report is provided for the benefit of the Tribunal, I am aware of the requirements of Part 35 of theCivil Procedure Rules 1999 ,Practice Direction 35 and the Guidance for the Instruction of Experts in Civil Claims 2014 and have sought to comply with their provisions. iv. I have given details in this Report of any matters which might affect the validity of this Report. v. I have addressed this Report to the Tribunal.”
“GT was engaged by the Authority to undertake a review of a sample of client files from somewhere between 80 to 100 firms that had provided advice to their clients regarding transfer of pension from DB to DC schemes, and where the Authority had concerns about the suitability of the advice provided by those firms. CFP [Ms Fox-Bryant’s firm] was one of those firms. She was involved in the consideration of the sample files as described more fully below.”
“56. Her written report exhibited tables setting out GT's analysis of the CFP files on which GT had reported to the Authority… 58. Ms Prestage explained the process used in the file review. GT engaged a team of specialist pension transfer reviewers who were contracted to perform the reviews. Many of the reviewers had previous experience of giving pension transfer advice themselves. The reviewers attended a two-day training course, which included training on how to use the 'DBAAT' tool for analysing the client files. 68. Ms Prestage said she did not personally conduct the file reviews, but she had QA oversight responsibility. In cross-examination at the hearing, she stated that she had no involvement with the initial triage or suitability review of the files. Her involvement came later when CFP had responded (in December 2023) in writing to the GT written analysis of the CFP files. At that point, a specialist pensions reviewer (who had not been involved in the initial file review) looked at the files, the DBAATs and CFP's commentary, and checked if any further information had come from CFP. The reviewer then discussed her assessment with Ms Prestage and together they went through some of the CFP files, and they agreed the GT reply commentary which is exhibited to her report.”
“During the hearing, prior to Ms Prestage giving her evidence, but 8 months after receiving her written report, Mr Fatchett appeared to challenge whether Ms Prestage could in fact be an expert witness, suggesting that she was instead a witness of fact. The Authority's position was that she was entirely open about the fact that she works for GT and that she did not personally conduct the file reviews herself, but she had Quality Assurance ("QA") responsibilities.”
“69. During Ms Prestage's cross-examination Mr Fatchett took Ms Prestage to Excel spreadsheets setting out the DBAAT reviews conducted by GT. Mr Fatchett pointed to the document metadata of the spreadsheets which Mr Fatchett had selected, and this appeared to show that Ms Prestage had modified the spreadsheet at the time of the initial review in 2019. This appeared to contradict her testimony that the first time she had seen or accessed this or any file or DBAAT relating to CFP was in December 2023 when responding to CFP's written commentary. 70. Ms Prestage was adamant in cross-examination that she had not accessed the files at the earlier time, and she could only speculate that her name appeared in the metadata as having modified the document if, as part of the original upload of the completed DBAAT to the FCA working domain, she had opened the document to check that all the boxes in the DBAAT hadbeen completed. In re-examination, the Authority did not take the Tribunal to any explanation for this occurrence. 71. In closing, Mr Fatchett for the Applicants did not accuse Ms Prestage of dishonesty, but he did say Ms Prestage should have checked before giving her evidence what her involvement was, and she should have had some better explanation as to how the metadata showed the documents were modified in her name in 2019. Mr Temple said that this was an attack on process rather than engagement with the bigger issue, namely the conclusions reached by GT as to the inadequacy of CFP's transfer files and process.”
“Whilst the metadata issue concerning file access does remain unexplained (and we accept that this is clearly not ideal), the Tribunal accepts Ms Prestage's evidence that she did not take part (at least in any material sense) in the original transfer file review, DBAAT completion or QA of the files during the review in 2019. Even if the Tribunal is wrong on that, it is difficult to see what difference any material earlier involvement (prior to 2023) by Ms Prestage would have made to GT's findings. Although Mr Fatchett said it would amount to Ms Prestage ‘marking her own homework’ we accept Mr Temple's view that it does not engage with the bigger issue which is that CFP's information gathering was deficient.”
“…whilst the procedure for expert evidence set out inCPR 35 does not apply to Upper Tribunal proceedings, in practice the Upper Tribunal will adopt a procedure closely mirroringCPR 35 , and she was treated to all intents and purposes as complying with its provisions.”
“Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.”
“The area of expertise in any case may be likened to a broad street with the plaintiff walking on one pavement and the defendant walking on the opposite one. Somehow the expert must be ever-mindful of the need to walk straight down the middle of the road and to resist the temptation to join the partyfrom whom his instructions come on the pavement.”
“I do not dismiss those submissions. I recognise that they can, in an appropriate case, have some force. From the court’s point of view there can obviously be advantages in having an expert who is not employed in Mr Broadbent’s role. However, without knowing more about Mr Broadbent’s experience and the actual nature of his employment, the judge could not decide whether Mr Broadbent was qualified to give evidence as an expert. He could certainly give evidence as to fact.”
“The question whether someone should be able to give expert evidence should depend on whether, (i) it can be demonstrated whether that person has relevant expertise in an area in issue in the case; and (ii) that it can be demonstrated that he or she is aware of their primary duty to the court if they give expert evidence.”
“This passage seems to us to be applying to an expert witness the same test of apparent bias that would be applicable to the tribunal. We do not believe that this approach is correct. It would inevitably exclude an employee from giving expert evidence on behalf of an employer. Expert evidence comes in many forms and in relation to many different types of issue. It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence, but such disinterest is not automatically a precondition to the admissibility of his evidence. Where an expert has an interest of one kind or another in the outcome of the case, this fact should be made known to the court as soon as possible. The question of whether the proposed expert should be permitted to give evidence should then be determined in the course of case management. In considering that question the judge will have to weigh the alternative choices open if the expert's evidence is excluded, having regard to the overriding objective of the Civil Procedure Rules.”
“To give evidence on a contingency fee basis gives an expert, who would otherwise be independent, a significant financial interest in the outcome of the case. As a general proposition, such an interest is highly undesirable. In many cases the expert will be giving an authoritative opinion on issues that are critical to the outcome of the case. In such a situation the threat to his objectivity posed by a contingency fee agreement may carry greater dangers to the administration of justice than would the interest of an advocate or solicitor acting under a similar agreement. Accordingly, we consider that it will be in a very rare case indeed that the court will be prepared to consent to an expert being instructed under a contingency fee agreement.”
“82. The Judge’s further reliance upon his view that Mr Griffith’s evidence was ‘self-serving for the defendants’ was also an irrelevant factor so far as his determination as to whether Mr Griffiths was qualified as an expert for the purposes of section 3 [of the Civil Evidence Act]. Questions of the independence of a person giving expert opinion evidence and whether their evidence is unbiased go to weight and not admissibility under section 3… 83. I therefore conclude that the Judge’s decision to exclude Mr Griffith’s evidence on the basis that he was not adequately qualified to give expert opinion evidence withinsection 3(1) of the Civil Evidence Act 1972 cannot stand.”
“Where the expert has an interest of one kind or another in the outcome of the case, the question of whether he should be permitted to give evidence should be determined as soon as possible in the course of case management.” (5) The consequence of refusing to admit the Statement as expert evidence would be that the UT would not have the benefit of an expert opinion on defined benefit pension transfer advice. That is correct, but as Lord Phillips said in Factortame, when deciding “whether the proposed expert should be permitted to give evidence” the judge has to “weigh the alternative choices open if the expert's evidence is excluded, having regard to the overriding objective”
“We were instructed to review 16 DB pension transfer advice client files.” “…we were unable to assess the suitability of the advice in 12 cases due to insufficient or non-compliant information gathering.” “In our causation assessment, we concluded that HDIFA’s non-compliant conduct caused clients to transfer benefits from DB schemes with safeguarded benefits to schemes with flexible benefits”
“We used the first section of the DBAAT to assess whether the firm had complied with the applicable information gathering requirements…We used sections two and three of the DBAAT to assess the suitability of the pension transfer advice and any associated investment advice…We used the Disclosure section of the DBAAT to assess whether the firm had complied with the applicable disclosure requirements”
“(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need – (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.”
“A judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the ‘failure to comply with any rule, practice direction or court order’ which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate ‘all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]’.”