WHO IS AN EXPERT? NOW THERE’S A QUESTION: DEFINITIONS OF “EXPERT” CONSIDERED

The collapse of the “carbon credit fraud” prosecution today because an “expert” was found out to have no actual expertise leads to consideration of how  exactly the courts define an “expert” .  This does not give rise to a straightforward answer.

 

“Someone paid more than most of the lawyers to attend court. Entirely independent. Co-incidentally repeatedly prepare reports and give evidence which is entirely supportive of the party who happens to be paying them.”

 

THE CIVIL PROCEDURE RULES

CPR 35.2 gives a wonderfully circular definition.

35.2

(1) A reference to an ‘expert’ in this Part is a reference to a person who has been instructed to give or prepare expert evidence for the purpose of proceedings.

 

THE CIVIL JUSTICE COUNCIL

 

The Civil Justice Council Guidance for the instruction of experts in civil claims is mentioned, expressly, in PD 35.  I cannot find a definition in the rules. Paragraph 16 has a suggestion.

“16. Before experts are instructed or the court’s permission to appoint named
experts is sought, it should be established whether the experts:
a. have the appropriate expertise and experience for the particular
instruction;”

THE CRIMINAL PROCEDURE RULES

Part 19 (2)

  1. (2) A reference to an ‘expert’ in this Part is a reference to a person who is required to give or
    prepare expert evidence for the purpose of criminal proceedings..”

THE CASE LAW

The admissibility of expert evidence (as an exception to the general rule that opinion evidence is inadmissible) was summarised by Evans-Lombe J in Barings Plc v Coopers & Lybrand [2001] PNLR 22, §45 as follows:

“In my judgment the authorities which I have cited above establish the following propositions: expert evidence is admissible under section 3 of the Civil Evidence Act 1972 in any case where the Court accepts that there exists a recognised expertise governed by recognised standards and rules of conduct capable of influencing the Court’s decision on any of the issues which it has to decide and the witness to be called satisfies the Court that he has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of those issues.

THE WHITE BOOK

The notes at 35.2.1.

“An expert is a person with a high degree of skill and knowledge in a particular subject, who has relevant and up to date expertise with regards to issues in this case, and sufficient education and communication skills to produce a clear written report, and, if necessary to provide helpful oral evidence to the court.”

THE CROWN PROSECUTION SERVICE

The CPS has guidance on Expert Evidence

Definition of Expert Witness
An expert witness is a witness who provides to the court a statement of opinion on
any admissible matter calling for expertise by the witness and is qualified to give
such an opinion.

COULD THIS “ABSENCE OF EXPERTISE”  HAPPEN IN CIVIL PROCEEDINGS?

Not only could it, it has definitely happened. See Sinclair -v- Joyner [2015] EWHC Civ 1800 (QB), where the “expert” referred to (anonymous) others who had helped in the preparation of report and whose qualifications were equivalent to O level (GCSE).

  1. I accept that Mr Newton has had “many years of experience looking at thousands of crashes”, as he said when questioned as to his qualifications and expertise. It emerged, however, that most of that experience was gained when he was working as part of a multi disciplinary team of academic experts and professionals at Loughborough University’s Vehicle Safety Research Centre, to whom he could and did defer on matters beyond his own expertise, Mr Newton’s academic qualifications being limited, on his own admission, to the military equivalent of the core O’level subjects.
  2. He identified in his report three individuals with academic qualifications in the fields of medicine and engineering, who were consulted by him for the purposes of preparing his report. Their involvement was, however, not documented and there is no information as to the questions they were asked or the answers they gave. The “two wheeler” consultant identified was consulted, Mr Newton said, as “someone who knows a great deal about two wheeler accidents”, who had “checked my report to check its scientific validity” and who was consulted “mostly to confirm that what I thought about the case was true.”

THE REALITY: WIGAPEDIA

It would be remiss not to mention Colm’s  Language of the law decoded: The litigation edition an  expert is defined as

“Someone paid more than most of the lawyers to attend court. Entirely independent. Co-incidentally repeatedly prepare reports and give evidence which is entirely supportive of the party who happens to be paying them.”

A REMINDER: WEBINAR ON EXPERTS 2nd JULY 2019

I am giving a webinar on the relevant law, practice and procedure of experts on the 2nd July.

 

This webinar will give practitioners a sound working knowledge of the key rules and cases dealing with experts, together with practical advice on how to deal with common issues and problems arising from expert evidence, and cover:

  • The rules relating to expert evidence

  • Who is an “expert.

  • Obtaining the Court’s permission to rely on expert evidence

  • The admissibility of expert evidence

  • The lawyer’s role & interactions with the expert

  • ”Experts behaving badly” how to spot this and what to do

Details of the costs and  how to book are available here.