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Challenges facing an Expert Witness in a high-velocity industry

Special Reports

by Dr Angus Finney

 

“So, you’re really more on the academic side of the film industry these days, aren’t you?” So asked the cross examining QC acting for the Appellant’s side in 2014. “No, that’s not accurate,” I replied calmly, turning to deliver my clarification to the two Judges presiding over the $1bn film tax tribunal. “In addition to teaching at Cambridge University, Exeter University and London Film School, and training around the world, and holding a PHd from City University London, I manage the Film London Production Finance Market, attracting more than $300m of production value a year, and curating an event that brings more than 150 film producers and international financiers from all over the world together in October to do business.”

Raising his eyebrows, the QC looked irritated. He’d asked a question that he should have known the answer to. Or perhaps he was hoping I was not paying attention. I continued: “I have also mentored a range of companies in South Africa, New Zealand, Canada and France, and am attached to certain film titles as an executive producer.”

The QC moved on to distribute my most recent book, The International Film Business – A Market Guide Beyond Hollywood (2nd Edition, 2014) to the entire room of QC’s, lawyers, advisors and observers. Described as ‘bed time reading,’ the court was directed to read a range of pages about the roles of producers, executive producers and financiers contained within the now globally established film business textbook. The court was retired and the subsequent reading was undertaken. (Not exactly a book that keeps my four young boys up late at night with torches…).

However, the notion put forwards in the opening arguments that I was not qualified to be an expert witness and that my papers were unacceptable, was now roundly squashed given their change of tactics and the desire to cross examine elements of the book that suited their arguments. Understanding that this kind of tactic is inherent in the majority of complex cases is essential, and should be anticipated by an Expert Witness.

The complexity of keeping a balance, remaining fair, while dealing with issues that traverse facts, fiction, nuance and varied definitions and interpretations is precisely the art expected of a strong Expert Witness. Taking up an advocatory approach is not an option. In opaque industries such as the film industry, a high level of knowledge is necessary across the entire media value chain if an expert witness is to ‘lead’ counsel, solicitors and expert peers, and offer a serious insight into the issues at stake.

Film and media litigation that requires expert witness input is understandably less common than, for example, medical cases. My experience to date has so far traversed an interesting range of cases, including:

1. Four company directors of a Guernsey film operation being sued for negligence and damages totalling more than £10m. (The case was settled  under arbitration for less than half the initial claim). The frustrating element of the case was that ‘risk management’ was assigned to third party principals rather than the directors in case, but they did not have PPI, whereas the company directors were both still potentially liable and covered to a high level. Hence the principal who has lost investment went after the principals from whom he could recoup rather than the players at fault.

2. Acting as an expert witness for a local government authority, in a case that went up against appellants Pinewood Studios. This was the most difficult case to
undertake as an Expert Witness, as the entire UK film industry was behind Pinewood expanding its Green Belt studio base. However, in the fairness of democratic
argument, there were a number of concerns over the forecasting put forward by Pinewood that at the time could be challenged, but only to an extent. On the balance, it was a risk to undertake the Expert Witness role, but experience and a further understanding of the responsibilities and tasks involved in the process were learnt and underlined.

3. HMRC approached me to be an Expert Witness in the film tax tribunal case I refer to at the front of this article. After intensive consultation, I took on the high
profile case, which involved thousands of documents, years of argument and disagreement, and had finally ended up at the First-Tier Tribunal (tax chamber). Without going into details on the specifics of the case, what I learned is that there are five key roles often required by an expert witness.

They include:

a) To write a report(s), whilst being careful to avoid any opinion that cannot be evidenced clearly, and to not be drawn into commenting on matters that you personally are not comfortable opining upon

b) Paying considerable attention to any rebuttal process and report (or joint agreement between opposing expert witnesses), as this further evidence carries considerable weight with the court

c) Recognising that while a court or tribunal case may be completed, a Judge may well ask a range of follow up questions and your role needs to be sustained and focussed.

d) Advising the client on a range of aspects across the industry in question, some very specific, some much broader, whilst remaining fair and neutral re the facts of the case in question.

4. For balance, it’s useful for readers to know that my Expert Witness experience has also included one case that I turned down, on the grounds that a director of
a company cannot hide behind ignorance when acting as a principal of a company. The case would have been very profitable in fees for my company and personally, but the important point was that I felt it was unethical and wrong to serve for the appellant given the above stated circumstances.

In conclusion, when dealing with high-velocity, complex industries such as film, television and the world of digital media, it is critical to remain clear, plain speaking and transparent in all written and verbal evidence. The ‘’weight’ of evidence is always lessened if it is trumped up with obscure jargon and over complexity. As the American author Kurt Vonnegut wrote: “It’s quite possible for good to triumph over evil, but the angels have to be organised like the Mafia…

Brief biography

Dr. Angus Finney is a leading international film and creative industry specialist who has taught and lectured across the world. His work includes MBA-level teaching at The Judge Business School, Cambridge University and MA-level Course Directing at London Film School/Exeter University. Finney is the manager of Europe’s only Production Finance Market, hosted by Film London annually. His work has recently included acting as a government expert witness in two high profile cases, including the £1bn tax tribunal involving Ingenious Media and HMRC; and has served as an expert witness on a private film finance dispute in Guernsey.

His UK training includes working with Creative Skillset, Creative England, Film Agency Wales, Film London and the Film Distributors Association; and his professional development work has extended to South Africa, Ireland, UAE, Canada and New Zealand over the past five years. Finney has mentored individual producers, directors and writers, alongside companies and senior managers in the UK, France, Ireland and New Zealand.

Finney’s fourth and most recent book is: The International Film Business – A Market Guide Beyond Hollywood (Routledge) was published in May 2010. A second edition has been published in October 2014 and is currently being planned for publication in China in 2017. Finney has personally trained more than 1000 film producers/writers and directors, company executives and students since 2005, and delivered master classes and lectures at Judge/ Cambridge, Cass/City, Grenoble, London University, the Sorbonne and Copenhagen Business School.

Finney also has considerable practical entrepreneurial and management experience: He was appointed joint Managing Director of Renaissance Films, a UK-based development, production, financing and sales company in July 1999, taking over sole MD responsibilities in 2002 before the company ceased trading in July 2005.

Finney is a Research Fellow at Exeter University, and has a PhD in Management from Cass Business School, City University London. He has an MA in Film (Documentary specialism) and Journalism from New York University, a post-graduate Diploma from City University in Newspaper Journalism and a BA from Sussex University in International Relations

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