CIVIL PROCEDURE BACK TO BASICS 72: THE EXPERT’S DUTY TO LOOK AT BOTH SIDES OF THE ISSUE AND GIVE REASON FOR THEIR VIEWS (A MANDATORY OBLIGATION MORE HONOURED IN THE BREACH…)

The recent post on the decision in Ashley Wilde Group Ltd v BCPL Ltd [2019] EWHC 3166 (IPEC) highlights a common omission from many expert reports. The expert’s duty to consider whether there is a range of opinion and to give reasons for their own opinion is a mandatory obligation that is often overlooked.

THE ASHLEY WILDE GROUP CASE

The judge was highly critical of an expert who had been instructed initially solely to find evidence solely in the claimant’s favour then becoming an expert for court purposes.

“Mr Herbert confirmed in cross-examination that he was only asked to look at similarities which were supportive of Ashley Wilde’s case of copying, and not differences which might undermine that case and/or support BCPL’s case of independent design.”

This then developed

“In cross-examination, Mr Herbert confirmed he turned his informal opinion into a formal expert’s report, which is the report I have before me. He put the same findings from his informal opinion into his formal report. He said that he was not asked to look at any differences between the two designs or carry out any additional measurement”

THE  REQUIREMENT (MISSING FROM ABOUT 98% OF THE EXPERT REPORTS I SEE)

This case highlights the importance of an expert looking at both sides of the issue or issues upon which they are instructed to report.

Practice Direction 35 3.2 gives details of the matters that an expert’s report must contain. One of these mandatory items is

“(6) where there is a range of opinion on the matters dealt with in the report –

(a) summarise the range of opinions; and

(b) give reasons for the expert’s own opinion;”

 

THE MANDATORY DUTY TO CONSIDER WHETHER THERE IS A RANGE OF OPINIONS AND GIVE REASONS FOR THE EXPERT’S OWN OPINION

If we assume that the word “must” means “must” then every expert reporting to the court should  have, in their reports:

 

  1. A statement of whether there is a range of opinion.
  2. A statement of the reasons for the expert’s own opinion.

It may be that my own experience is unusual, however I rarely see this in a report.  I suspect the reason that it is not raised as an issue more often is because the experts for both sides are in default.  An advocate complaining about this absence will then have to deal with the issue that the expert instructed for their own party is equally in default.

DOES IT MAKE A DIFFERENCE?

I cannot recall a case where this omission (of a mandatory obligation remember) has been raised by the court.   It could be significant, however. If the claimant’s expert in the Ashley case had looked at both sides of the issue and given reasons for their own view then it may well be that, despite the method of instruction, the judge would have given the report more credence.