2020-02-17
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Expert witnesses - a cautionary tale

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Posted by Susan Hopcraft on 27 February 2019

Susan Hopcraft Partner

In the dim and distant past expert witnesses could not be sued for negligence. That changed in 2011, and they can now be sued when acting as an expert.

Although the hope was that this may help to drive up levels of care and skill amongst professionals when acting as experts, there are signs that further improvement is still required.

There have been a number of recent court decisions criticising expert witnesses who the court has regarded as acting as the equivalent of “hired guns” for the party which has appointed them.

It is understandable that some parties regard their expert as there to help them win their case, in the same way as their solicitor or barrister. After all, the party is paying the expert’s fees.

However, the court rules are clear in requiring experts to act independently and impartially. They are there to assist the court on matters within their field of expertise.

Despite those clear rules, they have not always been followed by experts. For example, in the 2017 case of Imperial Chemicals Industries Limited v Merit Merrell Technology Limited, the Technology and Construction Court judge dealing with the case was highly critical of ICI’s experts.

He stated in relation to the evidence of one expert for ICI at trial given in cross examination that it was “…not the sort of evidence one would expect from a wholly impartial independent expert witness.

He went on to say “On all matters where the experts for the two parties hold different views, I prefer the evidence of [Merit’s expert]…I find his evidence to be wholly impartial and his independence to be uncompromised. His conclusions were sensible and did not seek to advance the case of the party instructing him. The same, regrettably, could not be said of [ICI’s two experts].

So while it may be understandable that a party may want their expert only to express views which are favourable to their case, recent case law highlights the danger of this approach. It can backfire, resulting in the judge preferring the evidence of the other expert if the judge believes that other expert is acting impartially.

Acting in breach of the court’s rules could also put the expert at risk of a claim from the party instructing him if it can be shown that his failure to follow the court rules on expert witness independence and impartiality has damaged his/her party’s case at trial.

Such risks for parties and experts alike can be avoided by following the court rules on expert witnesses, and for parties to avoid the temptation to put pressure on their expert to say what the party wants to hear.

About the author

Susan is a disputes and professional negligence lawyer, mainly in the financial services sector.

Susan Hopcraft

Susan is a disputes and professional negligence lawyer, mainly in the financial services sector.

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