BEWARE THE EXPERT WHO "LECTURES" THE COURT (AND TELLS THE JUDGE WHO TO BELIEVE)
In Walls -v- London Eastern Railway Ltd (N Wilkinson QC) 05/12/2014* the judge found that the claimant’s continuing back pain was caused by a long-standing degenerative spinal condition rather than an accident.
THE JUDGE’S COMMENTARY ON THE EXPERT EVIDENCE
One interesting feature of this case is the judge’s comments on the medical evidence called by the claimant.
- The expert had “presented his evidence as a series of lectures”.
- It was no part of an orthopaedic expert’s expertise to tell a court who should be believed and why.
- The expert had diminished the role of an expert in doing so.
- The expert had unreservedly supporting the claimant’s claim even though the claimant’s evidence had been misleading.
Consequently the judge awarded £1,250 damages. (We do not know the amount claimed. However the fact that this was a High Court case so it is safe to assume that the claim was substantial).
THE PROBLEM OF THE PARTISAN EXPERT
It would be unfair, without a full transcript and full knowledge of the case, to categorise the expert in that case as partisan. However the case does highlight a problem of an expert with tunnel vision who starts to argue the case rather than give evidence properly limited to their expertise.
EXPERTS TRYING TO DETERMINE FACTUAL ISSUES
There are some other observations on experts “overreaching” themselves in recent cases.
In Garcia -v- Associated Newspapers  EWHC 3137
Dingemans J considered the evidence of an expert.
Dr Gerada gave evidence about which respective version of events was most likely to be reliable. I have not taken that evidence into account, and Mr Browne was justified in stating that Dr Gerada’s evidence on this point was not permissible expert evidence as it dealt with issues of fact, and not issues on which expert evidence was relevant.”
Mr Justice Coulson in Stagecoach Great Western Trains -v- Hind & Steel  EWHC 1891 (TCC) was highly critical of the expert called by the claimant.
“Save in exceptional circumstances, experts should not embark on this kind of fact-finding exercise, particularly when they perform it so unprofessionally. Matters of fact are for witnesses of fact, not for experts.”
THE DANGER FOR THE LITIGANT (AND THE LITIGATOR)
The real danger of the overreaching expert is the degree of false comfort such an expert, and such a report, gives to the litigant.
- Perfectly reasonable offers of settlement can be turned down because the litigant believes, on the basis of the expert evidence, they have a strong case.
- A litigant can overlook the need to obtain evidence to establish certain facts because those facts are “proven” by the expert evidence.
An expert report may be obtained to facilitate settlement. However all litigation must be conducted on the basis that the case may not settle and this expert will need to justify their evidence at trial. It is as important to subject your own expert evidence to scrutiny prior to trial as it is your opponents. If the first time that you find out the weaknesses of the evidence is at trial then the litigant (and often the litigator) has serious difficulties.
ALSO ON THE SUBJECT OF EXPERTS
- Over eager experts just do not help: they hunder and harm the cases of those who call them.
- More on experts: non-compliance with the rules taints the evidence badly.
- The credibility of witnesses: joint meeting and overreaching experts
- Evidence, experts and arson: analysing the evidence when serious allegations are made
- Principles of mitigation of loss and the credibility of expert witnesses
- Expert evidence: the expert’s role; seeing the wood for the trees
- Cross-examining expert witnesses: hints, tips and links.
* Reported on Lawtel. The post on this case is based on the Lawtel note of the judgment.