There have been plenty of interesting cases on experts this year. Here are a few select cases.
ATTEMPTS TO SNEAK EXPERT EVIDENCE IN
There have been a number of cases where parties have attempted to “disguise” expert evidence.
“The parties in this case adopted slightly odd procedures to adduce evidence of the technical background. Gilead served a witness statement of Professor Brian Gazzard CBE, who is Professor of HIV Medicine, Consultant Physician and Research Director for HIV and Genitourinary Medicine at Chelsea and Westminster Hospital. Prof Gazzard is, and has been for many years, a well-known and eminent expert in the field of HIV treatment. He stated in his witness statement that he had been asked to give evidence “as an independent fact witness”. In reality, Prof Gazzard’s evidence is, at least in part, expert evidence which Gilead did not obtain the permission of the Court to adduce. The fact that his statement was, commendably, quite brief and drafted so as to be uncontroversial does not alter this.
For their part, the Claimants served hearsay notices in respect of a number of scientific papers. This was another device for adducing what in substance amounted to expert evidence without obtaining the Court’s permission, and an even less satisfactory one.“
Similarly in Change Red Limited -v- Barclays Bank PLC [2016] EWHC 3489 (Ch).
“…although the claimant said at the CMC that it was not seeking permission to adduce expert evidence, the claimant has, without permission, put some opinion evidence before the court in the first witness statement of Mr. Klempka. I am referring particularly to paras. 48, 60 (at least the first two sentences), 62, 69 (the whole of the paragraph except the first sentence), and 79. All of those passages except what is stated in para. 79 appear to be the opinion of Mr. Klempka himself. There is no evidence before the court that Mr. Klempka has any expertise, let alone sufficient expertise, to be giving expert accounting evidence. The witness statement says he is a company director, and I cannot, as at present advised, treat that as a sufficient qualification for giving expert accountancy evidence.”
FAILING TO DISCLOSE INTERESTS
There have been several cases of a failure to disclose knowledge of the parties.
In EXP -v- Barker [2017] EWCA Civ 63 the Court of Appeal upheld the trial judge’s rejection of the evidence of an expert witness. The expert had failed to disclose that he had a close working relationship with the defendant doctor.
“the starting point is to identify what the judge decided. He considered that the witness had so compromised his approach that the decision to admit his evidence was finely balanced, and that the weight to be accorded to his views must be considerably diminished. In my view he was fully entitled to take that view. Indeed, had he decided to exclude Dr Molyneux’s evidence entirely, it would in my view have been a proper decision. Our adversarial system depends heavily on the independence of expert witnesses, on the primacy of their duty to the Court over any other loyalty or obligation, and on the rigour with which experts make known any associations or loyalties which might give rise to a conflict. Dr Molyneux failed to do so here, despite an express direction to that effect. Indeed, the omission of mention of papers co-authored with Dr Barker points in the other direction.”
“Professor Mond was put forward as an independent expert when in fact a company of which he is medical director was in commercial discussions with Express, the second defendant. This was not a situation where the conflict of interest was disclosed early in proceedings so it could be dealt with in advance – the conflict only became apparent in cross-examination. Whilst I am sure Professor Mond was doing his best to give honest and frank evidence, having not disclosed the fact of his company’s involvement with Express, it cannot be said that he can be seen to be independent of the parties. Further, the situation was exacerbated by the manner in which Professor Mond’s report was commissioned. On his own evidence, he was instructed by an officer and two board members of Cardioscan, the very company in commercial discussions with Express. He was clearly not properly instructed under Part 35. He wrote a letter that was later turned into a witness statement, appending a statement of independence that turned out not to be accurate. The report also states that Professor Mond had read Part 35. This, too, turned out not to be true, although Professor Mond did say that Part 35 had been explained to him.”
BREATH TAKING ARROGANCE
“Professor Vantsevich’s evidence was extraordinary in its presentation and, frankly, shot through with breath taking arrogance. His stance throughout was that he was right and everybody else was wrong…
That arrogance came over in the witness box. He plainly felt he was right and everyone else was wrong. Indeed, I made a comment to that effect during the course of his evidence. Furthermore, after he had completed his evidence, he sat in the well of the court shaking his head from side to side, evidencing his disagreement, and, judging by his face, his disgust, with the evidence being given by Mr Mutch, the first of the Defendant experts to be called.”
NO CONCEPT OF HIS DUTY TO THE COURT
“Mr Vosser’s close relationship with the Bank was borne out by many things: his unrealistic approach to the allegations; his attempt to mislead the court; his application of the wrong test; his unreasonable intransigence which led to his refusal to make any concessions whatsoever; and the fact that many of his criticisms, which he did not withdraw, were so unpersuasive that the Bank, quite properly, declined even to plead them as allegations of professional negligence”
Like this:
Like Loading...
Related
