2019 AND CIVIL PROCEDURE, THE YEAR IN REVIEW (6): WHY WE STILL FRET OVER EXPERTS …
It is no surprise that there are numerous posts on experts this year. 26 years after the blast from the courts on the role of experts in the Ikerian Reefer  2 Lloyds Reports 68 there are still regular reports of problems caused by experts not fully understanding their role. We have an expert stating “although his ultimate duty was to the court, where he was instructed by a particular party then he would do the best that he could to present that party’s case in the most favourable light.”
We have examples of experts positively harming the case of the side who instructed them, and of cases being struck out (in part) because of the conduct of an expert. Will 2020 be any different?
JANUARY: EXPERTS NOT ALLOWED AT TRIAL
- The year started with a topical subject “Brexit and Civil Procedure”. The case was far less exciting than the title suggested. The court held that experts on the foreseeability of the UK leaving the EU was not to be called at trial.
“in this case, the experts have not submitted a formal expert report of the sort envisaged under the CPR. As was made clear in my ruling on 26 September 2018 in this matter, the experts were effectively precluded from giving expressions of opinion in their reports. What instead they were asked to produce was a collation of relevant documents that the court ought to see for the judge to review and what was termed, in paragraph 4.2 of my ruling, a critical analysis looking at the material collated with the expert giving a view as to whether the information was significant.
“I am satisfied it is not going to assist the judge, whether it be me or someone else, in reaching a conclusion on the points in issue. Given the material that will be before the judge, the collation, and the narrative, it will be well within the ability of the judge to reach a concluded view on then of foreseeability without expert assistance.”
- We also looked at Family Experts in the Family Court, where Mr Justice Keehan refused an application to adduce expert evidence.
I… t is, therefore with, real concern to read that Professor Holick expressed his opinion in the terms in which he did, namely ‘It is with a high degree of medical certainty’ etc. Professor Holick had not undertaken a medical examination of the mother nor a medical examination of Y, whom he referred to throughout his report as ‘Case’. I know not why. Crucially there is no explanation, cogent or at all, in his report as to why he could express his opinion with ‘a high degree of medical certainty’ in what is asserted to be a fast developing area of medical science which is in some aspects controversial. Professor Holick provided no clinical, medical or factual evidence to support his opinion. There has been a wholesale failure to comply with the comprehensive requirements of PD25B.
In the circumstances set out above I am satisfied that Professor Holick’s expert report was irregularly obtained. Professor Holick is not a paediatric radiologist. I am not aware of his expertise to provide an opinion on the interpretation of the radiographs as he purports to do. It may be he has relied on the opinion of Dr Ayoub. In light of my conclusions about Dr Ayoub’s report in this matter, such reliance undermines the reliability of Professor Holick’s subsequently expressed opinions.
January also included cases where problems were caused by errant experts.
- Litigators keep a careful look out: Its your duty to monitor your expert’s conduct (otherwise its your client that suffers).
“The claimants or those advising them were therefore aware of what Professor Kilgallon had done the first time around and should have made it clear to him that this was unacceptable. If they failed to do so this was itself a serious failing.”
- Intransigent expert’s approach leads to “significant part of claimant’s case being struck out”: a case for every expert and litigator to read – now.
“… a party is not entitled to disregard the rules, secure in the knowledge that until an unless order is made it will always get a second chance”
FEBRUARY: EXPERTS AND FACTS
- In February we looked at the issue of “experts and facts” “Experts who venture onto the Judge’s Territory Don’t Usually Fare too Well.”
“I add for completeness, that on a number of occasions Mr Evans [the medical expert] made reference within his report to factual matters which were in dispute. It is clear that he formed his own opinion as to the reliability of the account given by the Claimant. I have not had regard to those comments within his report. The determination of factual issues and the assessment of witness evidence do not fall within his remit. They are matters that are for the court to determine having regard to all of the evidence available.”
- A similar issue was examined in “When Experts Report Things That Have Never Been Said”.
“… in his reports, Mr Sheppard sets out a large number of things which he said Ms Hind had said to him during that interview. They are expressed as things which Ms Hind ‘stated’. But these were not matters which were referable even to the (inaccurate) notes that he had made. When Mr Stead cross-examined him about this, he accepted that these were his words, rather than Ms Hind’s, and were his ‘interpretation’ of what she said or would have said. That meant that the reports were doubly misleading, both because they failed accurately to report what Ms Hind had actually said, and because they identified her as saying things which were, in truth, just Mr Sheppard’s interpretation of what he thought she would have said.”
- Court refused to order that contested evidence be removed from expert reports.
- Experts and facts: experts who venture onto the judge’s territory don’t usually fare so well.
MARCH: EXPERTS OF NO PRACTICAL USE (PARTICULARLY IF THEY DON’T REPORT AT ALL)
- Sometimes experts are of no practical use. This was demonstrated in the case discussed in When Experts are of No Use at All.
“I am afraid that I have not found the evidence of either expert helpful in this case. Although both experts gave their evidence with apparent confidence and some plausibility, they were both deeply unsatisfactory witnesses.”
- A family case was considered in “Experts who can’t report on time”.
“There will always be occasions when, despite an expert having genuinely believed that he or she could complete a report by the date set by the court, circumstances change and that is no longer possible. Where that happens, the expert should let his or her instructing solicitor know promptly, giving reasons for the delay and indicating the new date by which the report can be completed. An application should be made to the court for the timetable to be varied”
- Giving notice that you are going to attack an expert’s credibility.
- Should an errant expert go to jail? Making a false statement should lead to jail.
“the deliberate or reckless making of a false statement in a document verified by a statement of truth will usually be so inherently serious that nothing other than an order for committal to prison will be sufficient. That is so whether the contemnor is a claimant seeking to support a spurious or exaggerated claim, a lay witness seeking to provide evidence in support of such a claim, or an expert witness putting forward an opinion without an honest belief in its truth.”
APRIL: “AN UNFORTUNATE CHANGE OF VIEW” BY AN EXPERT
- An unfortunate change of view by an expert: another example of a report not being robust and causing difficulty for litigants.
- When an expert relies on matters from the internet for matters outside their expertise then your case is likely to fall apart.
- You spend a fortune on expert witnesses and then find out that they are not admissible or their evidence isn’t expert at all.
“In the light of these matters, I do not think that I can place any reliance on [the expert’s] opinion evidence of valuation at all. It is based on a false premise, partly inadmissible, partly unsupported by appropriate reasoning, and in its conclusions frankly incredible.
MAY: USEFUL GUIDANCE ON INSTRUCTING AND CROSS EXAMINING EXPERTS (AND WHO IS AN EXPERT ANYWAY?)
“Much like a cowboy herding cattle, the lawyer needs to provide guidance to his retained expert witness”
- Guidance on Instructing Experts (2): the appointment of experts
- When you have an expert who says they are “biased”
“Experts and those instructing them are expected to have regard to the guidance contained in the Guidance for the Instruction of Experts in Civil Claims 2014 at www.judiciary.gov.uk.” (PD 35.1).
- Guidance on Instructing Experts (3): the instruction of experts
- Cross examining experts: useful guides and links
- Who is an expert? Now there’s a question: definition of “expert” considered.
- Trying to serve a supplemental expert report: when do the Denton principles apply?
- The defendant’s expert “did not treat the defendant’s with the impartiality which his duty to the court requires”.
JUNE: THE SINGLE JOINT EXPERT IS NOT A DEMIGOD
- The appointment of a single joint expert does not displace the trial judge: experts should not “overreach”
- Expert witnesses: a crisis in the criminal courts
“…all an expert can do is provide opinion and not evidence.”
- Guidance on instructing experts 4: the single joint expert is not a demigod.
- The expert witness and the “hired gun”.
- Experts straying beyond their area of expertise.
JULY: ABSENT EVIDENCE AND AN EXPERT SAYING THEY ARE AN “ADVOCATE”
- Medical experts and absent evidence.
- When the expert witness actually says they are an “advocate”: what is going to happen?
AUGUST: THE EXPERT WITNESS AS ADVOCATE (AGAIN)
“It is not part of the duty of an expert to advance the case of the party instructing them, whether by advancing arguments of fact or law which are outside their expertise or by seeking to present that party’s case in a favourable light. An expert witness should present evidence which is uninfluenced by the pressures of litigation and contains independent assistance by way of objective opinion.”
“… I do not altogether exonerate the lawyers who have represented the claimant because they allowed Mr Sandeman to go into the witness box despite these clear and obvious deficiencies in Mr Sandeman’s written evidence, and this was something which should have been addressed by the lawyers long before the trial.”
SEPTEMBER: VALUING A FOOTBALL CLUB
- Experts who were of very limited assistance
- The dangers of inadvertently misleading the court: check before you assert (also a message here for experts).
- How do you value a football club: experts discuss the odds.
- Paying expert’s fees: informing an expert that a hearing is cancelled and – getting struck of the Roll.
OCTOBER: TAPES OF CONVERSATIONS WITH EXPERTS ALLOWED INTO EVIDENCE
- Court admits Claimant’s tapes of consultations with defendant’s experts. Probative value outweighs reprehensible conduct.
“… the sooner that there can be some kind of protocol agreed between the Association of Personal Injury Lawyers and the Forum of Insurance Lawyers which governs the recording of medico-legal examinations the better. It is the interests of all sides that examinations are recorded because from time to time significant disputes arise as to what occurred. In that situation, it is important to have a complete and objective record of the examination, which is subject to appropriate safeguards and limitations on its use. It is desirable that the parameters of such recording should be on an “industry-wide” agreed model which caters for the many issues capable of arising and, I might add, which pays careful attention to the containment of the costs that might potentially be generated.”
- Bundles, experts, absent witnesses, unpleaded defences and … sewage: all modern litigation is here.
- Experts asking the court for directions: this can really cut the mustard
- Claimant’s questions to Defendant’s experts disallowed: Part 35 has a requirement for proportionality: experts seek help
- A Court has to know how much an expert will cost: CPR 35.4
- Why would anyone want to record their meeting with an expert?
“When pursued in cross examination it was revealed that extensive parts of the report which purport, by the conventional grammatical use of quotation marks, to be direct quotations from the Mother, are in fact nothing of the kind”
- Experts, impartiality and celebrity bedspreads: be careful of the way you instruct experts and you may sleep tightly.