Judicial and public attention is increasingly being directed to the work of experts, not least in relation to the difficult tension between the expert’s contractual duty to his client, and his overriding duty to the Court.
In recent times, experts have hit the news for opining that men cannot have sex while asleep, and for denying accusations of ignorance, bias and incompetence. The period closed with the first conviction and jailing of an expert witness for “very serious perversion of the course of justice” in connection with the motor trade and the calculation of losses following car accidents.
As for judicial comment, a scathing critique for an expert how not to behave was handed down in the 2015 case of Van Oord Ltd & Another v Allseas UK Ltd, where the Court set out a 12-point list of failings by the expert in the case. This appraisal included: taking the case at face value; valuing the claim based only on his own side’s assertions; not checking that the information he was relying on was wrong; ignoring actual cost data and passing off others’ work as his own.
The result was that the expert had to accept in open court that his own report was misleading. Furthermore, he admitted that what he presented as his own opinions was nothing more than what others had told him to say. A salutary tale for all of us.
In light of this, and other recent cases where attention has focused on the expert evidence, what are experts and their instructing solicitors to take away and learn?
The first key issue remains, as it always has been, that of independence. We all know that the expert is to be, and to be seen to be, impartial and independent. The expert signs a declaration to this effect, and the solicitor instructs him on this basis.
The solicitor knows that the value of the expert to his client’s case lies in the Court accepting that his evidence is objective and impartial, and unaffected by the demands of the case or of the party instructing him. Why would the solicitor try to compromise the expert’s position, or the expert shoot himself in the foot by being partisan?
The 2017 case of Exp v Charles Simon Baker was an instructive point in case. This was a case of clinical negligence where the medical expert failed to disclose his professional and personal relationship with the defendant on behalf of whom he was instructed. The connection only came out when he referred to the Defendant in oral evidence by his first name.
The Court which heard the appeal stated, “the adversarial system depends heavily on the independence of expert witnesses and on the primacy of his duty to the Court over any other loyalty or obligation”.
Experts and instructing solicitors do well to be reminded of this from time to time, but hopefully not in a written judgment.
Another important aspect of the relationship between solicitors and their experts is one of adequate expertise. While an expert should not accept instructions in a field in which he is not an expert, equally a solicitor must ensure that he identifies accurately the expertise he needs. Once this has been identified, only then should a solicitor find an appropriate expert in this field.
This was the message in the 2014 case of Pool v General Medical Council. The medical expert in this case was found not to possess sufficient expertise in the particular field in which the Court needed assistance.
The Court said: “The expert witness requires more than clinical experience and knowledge. He also requires the ability to produce an adequate report and to give oral evidence in an authoritative and convincing manner”.
The Court added that the onus lay both on those instructing to understand what expertise they need, and on those asked to state clearly what they can be expert about, and what not.
Fees and Fee Arrangements
Let’s not forget to mention the sometimes difficult subject of fee arrangements. Every solicitor knows (or should know) that an expert cannot be instructed on a fee basis where the amount of his fees can be affected by the outcome of the case. Therefore, with virtually no exceptions, the expert cannot accept instructions on a conditional, contingent or damages basis.
Should the expert be instructed on such a basis, both he and the instructing solicitor will be at fault, and the damage to their client’s case of this being known can be substantial. This is not only because of the effect on the expert’s independence. It is also because an expert giving evidence on a contingency fee can materially influence the outcome of the litigation.
In the 2016 case of Dr Adler v the Medical Practitioners Tribunal, it was established that Dr Adler had breached this aspect of the expert’s code, to the extent that he was found to have written two reports for the same claimant in different cases where he contradicted himself from one to the other.
View from the bench
So how does the bench regard experts? In general, if they behave themselves, judges will be welcoming and courteous to experts, recognising that their technical expertise can be of great value to the course of justice. However, there is a number of aspects to expert evidence which judges find annoying, if not unhelpful.
The first of these relates to the management of expert evidence. Solicitors often feel that the expert is their key weapon – someone with special knowledge who can win the case for them. Often, this view is so strongly held that the solicitor may overlooked problems with their factual evidence. This approach leads solicitors at times to rely too heavily on the expert evidence and to push for the use of expert evidence where it is not needed.
Judges are now taking a much stronger line in allowing the use of expert evidence in their cases. Judges more often than not are resistant to allowing expert evidence, drawing a little narrower the meaning of the term “necessary” to the proceedings. Bear in mind that CPR part 35, which deals with experts, opens with the message “Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings”.
The word “restricted” seems more and more often to be the word the Court concentrates on. Overall, solicitors can expect judges to be taking a more critical look at the need for experts and will be looking at solicitors to demonstrate the need for expert evidence and show that they have properly identified the issues where expert evidence will be needed. In this context the Court will allow such evidence only where it is persuaded there is need. It should also be borne in mind that no party may call an expert or put in evidence an expert’s report without the Court’s permission (CPR Part 35.4 (1)).
What annoys judges more than anything else is when experts, either of their own volition or under pressure from instructing solicitors, take on any advisory or advocacy role, or usurp the function of the Court. The former arises usually when the expert forgets his impartiality, or is being lent on by instructing solicitors to say more than he should; the latter arises when the expert and his instructing solicitors have forgotten the limitations that apply to the role of the expert.
There has been a number of recent cases where these issues have received judicial attention, if not criticism. In the 2016 Scottish case of Kennedy v Cordia, two criticisms were levied at the expert: “one was that he was inadmissibly giving his opinion on matters of law; the other, that an expert’s opinion of what he would have done in the circumstances did not assist the Court, and was therefore inadmissible”. In the 2016 case of Darby Properties v Lloyds Bank, expert evidence was found by the Court to have amounted to a tutorial on derivative products and the expert evidence was not to be admitted as expert evidence but only as factual evidence.
Whether or not the adversarial system will benefit from this narrowing definition being applied to expert evidence and the greater distinction between opinion evidence and expert evidence of fact – where one is controlled far more strictly than the other – remains to be seen. Solicitors nonetheless need to be aware that this is the direction courts are taking and that the courts are more actively deterring parties from seeking to enhance the value of what is only factual evidence by calling it expert evidence.
Reasonable expectations of instructing Solicitors
Instructing solicitors, particularly where they may not have fully grasped the technical intricacies of their client’s case, like to rely heavily on their experts, often with excessive expectations as to the degree to which their expert can properly influence the case. My own experience is often the opposite that, even where expert evidence is necessary and helpful, it is seldom on this that the case turns.
This was forcefully brought out in the very recent 2018 case of Lehman Bros v National Power. In its judgment, the Court said: “Each party called expert evidence…I am grateful for the contribution made by each. It gave useful context. In the event I found the assistance they could give to the resolution of the material issues in this particular case was very limited. With little exception, the issues in this case were, in the event, for the Court directly rather than for the Court to choose between the opinions of two experts. There was very little common ground between them and this showed the room for difference of opinion.”
All these points should give food for thought to the instructing solicitor to use expert evidence carefully and in a fashion that is to the point.
Jeffrey Davidson, Managing Director
This article was published in International Accountant