RAKING UP OLD CASES WAS NOT A FRUITFUL GROUND FOR CROSS-EXAMINATION OF AN EXPERT

In contemporary litigation it is not unusual for the parties to spend some time (perhaps a considerably time) looking for material about previous cases that expert witnesses were involved in.  This may not always be time well spent.   In Richards -v- Speechley Bircham LLP [2022] EWHC 935 (Comm)  HHJ Russen QC was sceptical of cross-examination of an expert based on a previous case that the expert had appeared in.

“If previous lack of success on the part of professionals appearing in court was to be held against them in future cases then many litigants would quite soon find themselves without satisfactory representation.”

THE CASE

In a professional negligence case both side called experts. The claimants’ expert was cross-examined on the basis that he had given expert evidence in another case and his evidence had not been preferred.

THE JUDGMENT ON THIS ISSUE

The judge was sceptical as to whether mention of any previous cases had any value.

217.Mr Tozzi’s cross-examination of Mr Skeels began with Mr Skeels accepting that in the one High Court matter in which he had given expert evidence that evidence had not been accepted. The case in question was included in a supplemental bundle of authorities. I put no store by this point. It provides scant material for some kind of “similar fact” reasoning, particularly when in the present case Mr Skeels stuck resolutely to the analysis in his report. If previous lack of success on the part of professionals appearing in court was to be held against them in future cases then many litigants would quite soon find themselves without satisfactory representation.

THE RESULT

The judge preferred the approach of the claimant’s expert.

226.Having heard the experts and reflected upon their Reports and their Joint Statement I have concluded that Mr Skeels’ evidence is to be preferred.