THE INTERACTION BETWEEN LAWYER AND EXPERT: CASES ON EXPERTS THIS WEEK II

We have already looked at the decision of Mr Justice Roth in Agents’ Mutual Limited -v- Gascoigne Halman [2016] CAT 21 in relation to costs budgeting. Here I want to isolate one aspect of that budgeting exercise – in relation to experts.  This aspect of the interaction between lawyers and experts is of importance both generally and also in relation to the likely approach of the court during the costs budgeting process.

“… it should not need emphasis that the expert’s report should be the product of the expert, expressing his or her own, independent opinion, and not the reflection of heavy input or edited by the lawyers”

THE JUDGE’S COMMENT ON THE PHASE FOR EXPERTS IN THE BUDGETS

“Although Mr Maclean QC, appearing for the Claimant, was critical of the amount of solicitors’ time attributed to the expert’s report in the Gascoigne Halman costs budget, it seems to me that much the same criticism could be directed at the Claimant’s costs budget. There may be a good explanation, but it should not need emphasis that the expert’s report should be the product of the expert, expressing his or her own, independent opinion, and not the reflection of heavy input or edited by the lawyers. Some discussion with the lawyers is of course reasonable and the expert can be expected to assist the legal team in a critical review of the evidence”

There was no indication that this had, or was likely to, occur in the case in question. However that passage serves as a useful reminder of the important interaction between lawyer and expert where the expert must remain independent.

IF THAT SEEMS OBVIOUS…

• Remember the discussion about Whitehouse -v- Jordan where the expert reports were composite documents carefully drafted by the claimant’s counsel.
• The discussion of the Thoratec case at the end of October this year where the expert stated “”that he had not written this sentence, it had been written by AIS’s lawyers;”
• The discussion of the case of Cox -v- the Secretary of State for Health  “In my judgment the role of the expert witness is to provide expert evidence on the issues he is asked to address, rather than to concern himself with the conduct of the litigation.”
• Finally look at the discussion of the case of Van Oord UK Limited 

“By the end of his cross-examination, he [the claimants’ expert] was accepting every criticism or error being put to him by Mr Lofthouse QC; on occasions, he even conceded points before they had even been suggested.”

“the widespread and important elements of the claim, which he admitted he could no longer support, drove him to say in cross-examination that he was not happy with any of his reports, not even with the one provided during the last week of the trial, just before he gave his oral evidence. If an expert disowns his own reports in this way, the court cannot sensibly have any regard to them.”

“he made repeated assertions in his reports that appeared to be expressions of his own views. They were certainly not attributed to anybody else. But in cross-examination it was revealed that these assertions came straight from discussions he had had with OSR witnesses, Mr Mulcair and Mr O’Rourke. Even more alarmingly, some of these assertions, in particular those in Mr Lester’s report provided at the start of the last week of the trial, related to matters on which both men had already been cross-examined and (in many instances) on which they had had no credible answer to the points being put to them. In this way, Mr Lester was used to try and plug the gaps in OSR’s evidence which had been exposed by Mr Lofthouse QC’s cross-examination of OSR’s witnesses of fact, without any input from Mr Lester himself. That is the complete opposite of what a responsible, independent expert is obliged to do.”

RELATED POSTS

• The interchange between lawyers and experts: a difficult issue

• Experts and facts: it is all in the rules.
• The role of the expert witness in litigation: Supreme Court Guidance
• Expert reports: too long and not much use.
• More on experts: non-compliance with the rules taints the evidence badly
• The credibility of witnesses: joint meetings and overreaching experts: a case to point.
• Over eager experts just do not help: they hinder and harm the case of those who call them.
• Beware the expert evidence who “lectures” the court (and tells the judge who to believe).
• Expert evidence about the veracity of witnesses: well, its probably a waste of time.
• An expert must disclose details of professional relationship with a party otherwise the consequences can be dire.
• Irrelevant evidence, inferences and “forgery”: evidential issues in a High Court case.
• Principles of mitigation of loss & the credibility of expert witnesses.
• I didn’t mean it when I signed the joint report: what happens when experts change their minds?
• Expert evidence: the expert’s role: seeing the wood for the trees.
• Cross-examining expert witnesses: hints, tips and links.
• Experts going on a frolic: a family law case where the expert witness was “thoroughly unhelpful”.