Daniel Ryan is a managing director at Berkeley Research Group, where he leads the London office. Mr Ryan has over 25 years’ experience in quantifying damages arising out of claims in contract, or tort, and in valuing businesses and shares in both contentious and non-contentious matters. He is also highly experienced in intellectual property licensing, infringement of intellectual property rights, fiscal valuation and transfer pricing.

Are you noticing any recent trends in IP disputes?

I am certainly seeing a lot more IP disputes in the context of arbitrations. While historically nearly all such disputes were in domestic courts or tribunals, over the last couple of years perhaps half of the IP-related disputes I have been involved in have been arbitrations. These include the full range of IP-related assets from patents through to copyright.

The other trend is an increasing amount of disputes relating to social media and technology-related businesses, where there is often an interaction between technology and copyright and are often multi-jurisdictional.

What challenges do you face with the increased volume of data being used in disputes?

Dealing with large numbers of documents is something that experts are familiar with and can be managed with appropriate team structures and review processes. However, in an increasing number of cases, particularly in the financial services sector, the volume of transaction data that needs to be analysed is considerable. Traditional data manipulation tools, such as spreadsheets, are simply not powerful enough to deal with the size of the data sets and more powerful programming tools are required. This can result in a “black box” that is not only more challenging to work with but is more difficult to explain to a court or tribunal. Also, even with powerful processing capability running the analytical programme can take several hours, which creates time pressures that have to be managed.

What steps can be taken to preserve the neutrality of arbitration experts?

A key question that is asked of seasoned testifying experts before they are appointed by instructing solicitors is in relation to adverse judgments, in particular ones where their independence has been criticised. The publication of judgments is a reminder to experts that impartial evidence that a court or tribunal finds to be of assistance is an important part of their role. Publication of some key aspects of the expert testimony, even where other aspects must be kept confidential, would encourage compliance with the role of an independent expert. To the extent that details can be published in relation to specific items of evidence, such as use of a country risk premium in the cost of capital, it would also encourage experts to provide objective evidence, while recognising that such evidence may be fact or case-specific.

What is the most memorable arbitration you have been a part of, and why?

I was involved in an arbitration relating to the use of media rights by a social media platform. At the time various events were taking place globally that brought the use of such platforms to the forefront of popular consciousness, as well as being an issue of political and macro-economic importance at societal level. As with any valuation exercise, an understanding of how a business operates and the factors that underpin its financial performance is critical. While building knowledge of this business and the importance of different activities, the dialogue as to its role was being regularly discussed in the mainstream press in ways that I have not experienced in most other matters. It highlighted that while some may see arbitration as an esoteric exercise isolated from the real world, in fact, what we do makes a difference in ways we do not always anticipate.

How do you effectively prepare for cross-examination and/or hot-tubbing?​​​​​​​

Expert evidence in relation to valuation or quantum issues is similar to putting together a complex jigsaw puzzle. The evidence is compelling when the different pieces of the puzzle are mutually reinforcing, and the overall picture is coherent and fits together well. Therefore, one of the areas that I concentrate on when preparing to give evidence is making sure that I have focused on the most critical components of the overall picture and that I understand the shape of these pieces and how they fit together with each other. This ensures that I have thoroughly considered, not only what is important, but also how it can be best explained to a non-expert audience.

To what extent can virtual hearings be relied on to decide high-stakes cases between parties?

I have been involved in several virtual hearings over the past 12 months and have found them to be an effective replacement for face-to-face hearings. Obviously, as with any virtual meeting, it is more difficult to assess the reactions of individual participants. As an expert, that can make engaging with a tribunal more challenging and, in my experience, the dialogue between the tribunal and the witnesses is less interactive. Nevertheless, the process does allow for a robust exchange of views and I have not felt that the outcome of any hearing has been prejudiced by the need for it to have been carried out virtually.

How would you like to develop BRG’s London office over the next couple of years?

A number of great young experts have joined us over the last couple of years and bring with them the opportunity to grow our disputes team in markets that we have not been very active in historically, such as CEE countries, Turkey and continental Europe. I am keen to support these colleagues and help them achieve their potential.

The other area of focus for us is continuing to build out our roster of industry and point-specific experts, such as we have been doing in the audit negligence area and industry verticals, such as mining and energy.