Related Sector: Expert Witness
Our content development team are regularly scanning and reporting on relevant judgments and news stories involving expert witnesses that might assist you in your practice. The themes/principles of all relevant cases form part of our comprehensive two-day Civil Law and Procedure course.
Since the courts of England and Wales reopened for the Michaelmas term, there have been a handful of cases involving experts, where duty and conduct have been referred to directly in the judgment. We’ve put together a mini case law update, providing a summary of two of the most relevant cases, and the key principles that you should be aware of for your practice.
The claimant was the owner of a relatively new car. He parked the car outside his house. The vehicle caught fire and was destroyed. The claimant then brought an action against the manufacturers of his car on the basis that the fire must have been caused by a defect in the car itself.
The claimant was unable to identify a specific defect to support his cause of action. He therefore commissioned an automotive engineer who inspected the car about eight months after the fire took place.
The engineer’s expert report contained the following:
"… the fire commenced within the vehicle and must have resulted from some sort of defect in that vehicle.”
During questioning by the court, however, the expert changed his position from "must" to "more than probable." In addition, neither the claimant’s nor the defendant’s expert were able to identify a specific vehicle defect as the cause of the fire.
The judge considered the weight which he could give to the two experts.
He expressed some concerns with regards to the claimant’s expert – noting the significance of him changing his evidence from "must" to "more than probable", but then failing to qualify his written report accordingly.
In contrast, he did not have the same concerns about the defendant’s expert. He was confident that the expert had reached an independent conclusion and recited parts of his evidence without criticism.
The judge found in favour of the defendant. The claimant appealed that decision, arguing that "this was a simple matter of language’’. But his appeal was unsuccessful, with the judge rejecting the claimant’s argument and instead deciding that it represented a significant change of view on an issue that was fundamental to the court’s decision-making process.
This case concerned an action relating to the alleged breach of a patent relating to the processing of telephone calls within a call centre.
The claimant called two experts in support of its case.
The second expert was a consultant, specialising in payment card processing, including call centres, at an operational level. She had in-depth knowledge of the various international card scheme rules, and UK and EU card payment standards.
During cross-examination, however, it became apparent that she struggled to understand and answer questions put to her on some of the technical issues – despite having addressed these issues in considerable detail in her expert reports.
Pressed further, she explained that she had not written the first draft of the expert reports herself, but had sent copious notes to her instructing solicitors, who had then spent many months putting her reports together, with further input from her on specific points. She maintained, however, that the final written reports were entirely her own evidence, and she had read them carefully and agreed with the points made. She said, that because her own language was so non-technical, the solicitors had sometimes reformulated what she said to put it into the right form of words.
The judge took issue with her evidence. He reminded the court of CPR 35.5(1): the duty of experts "to help the court on matters within their expertise.’’ Exploring this in more detail, he distinguished between an expert conducting ‘’further research to enhance their existing knowledge’’ or ‘’background reading…in a related field…to be able to understand the context of the issues of a case’’ and an expert giving ‘’evidence on the basis that they have sought to read in and educate themselves in the relevant field for the purposes of the case in question.’’
He then went on to state that:
"A person does not become an expert by virtue of having acquired knowledge in the course of the case itself. Nor should an expert give evidence on a subject which falls outside their expertise, but which they consider they understand “well enough” to express a view on the matter. An expert is not instructed for court proceedings on the basis that they believe that they have “sufficient” grasp of the matter to express a view or are able to teach themselves what they need to know in the course of preparing their evidence. They are instructed on the basis that they are a genuine expert in the relevant field, whose opinions may be relied upon and given weight by the court.’’
The judge was unable to accept the evidence of the claimant’s second expert on any matter that fell outside her core area of expertise.
Both cases highlight how integral an expert’s report is to a case and how much value a judge is likely to place on it when deciding on the outcome of a case. It is an expert’s duty to ensure that their report accurately reflects their opinion, regarding all the evidence in a case, and that they only provide opinion on matters on which they are a genuine expert.
Bond Solon offers a variety of courses and certificates designed specifically for expert witnesses that provides them with the skills and knowledge needed to carry out their work confidently, compliantly and to best practice standards. You can view our full suite of courses here.
Author: Meera Shah
This article was first published on the 17 October 2023
Duncan Dymond - Consultant Cardiologist
17 Oct 2023 16:21
Thank you. Although it astounds me that any expert would not write even the draft report themselves.
Want more information? Please call us on...
020 7549 2549
If you require any help or would like to discuss how Bond Solon can assist you in your training needs, please call us on: +44 (0) 20 7549 2549