CIVIL PROCEDURE REVIEW OF 2017 (III): EXPERTS: SNEAKINESS, DISCLOSURE OF CONFLICTS, ARROGANCE AND NO CONCEPT OF THE DUTY OWED TO THE COURT
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.
Teva UK Ltd -v- Gilead Sciences Inc  EWHC 13 (Pat)
“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  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  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.