We have another example of expert witnesses being criticised by the court in the judgment of HHJ Claire Jackson in Davies-Gilbert v Goacher [2022] EWHC 969 (Ch).


“it is not for an expert to disregard the instructions they have received from the Court and the party instructing them and to thereby whole scale ignore evidence which does not support their opinion.”


The judge was deciding the question of whether the claimant had unreasonably refused consent to the defendants’ construction of dwellings on their land.  To that end the court allowed expert evidence to be called.


The judge found that the expert called by the parties was partisan, and ignored clear instructions from the court as to content and purpose. Further the experts tended to ignore facts that that did not agree with their own stance.

Expert Witnesses
107)                      Master Shuman in her order dated 28 January 2021 gave permission for the parties to rely on expert evidence. The permission was not however a general permission as Master Shuman set out the issues the experts were to address. Paragraph 25 of Master Shuman’s order provides:
Each party has permission to call one expert witness in the field of surveying to give oral evidence, as to whether the Defendants’ proposals:
  1. a) would affect the amenity of the land,
  2. b) would be out of keeping the surrounding land, and/ or
  3. c) may affect future development opportunities.
108)                      In my judgment and for the reasons set out below both experts in this case failed to comply with their duties to the Court, failed to follow their instructions and were partisan in formulating both their reports and their evidence to the Court.
109)                      As to the Claimant’s expert, Mr Beer, he was a fervent advocate for the Sussex Style. His report set out in detail what that style was and how it was found in the village of East Dean. He gave extensive evidence as to the heritage value to the Estate. That is acceptable. An expert is instructed to form a view on the issues they have been asked to address and to address them. If in forming that view the expert considers they need to explain a style of building, then they are entitled to do so. If they feel they need to evidence that a style of building is present in a locale, then they are entitled to do so. If the presence of that style affects the value of land, then given the instructions in this case Mr Beer was entitled to address it.
110)                      However, Mr Beer was instructed to answer all the issues raised by Master Shuman and this is clear from his report at paragraph 1.4.  (How those issues came to be rewritten by him in the conclusions section of his report with the first question then referring to the Estate rather than the land is not clear.)  Further to Mr Beer acknowledging the order of the Court, those instructing him expressly asked him, amongst other things, to consider “whether the scheme would be in keeping with the existing density, size and character of the residential properties immediately to the west and north of the Defendants’ land or the dwellings in this historic core of the village.
111)                      Master Shuman therefore required the experts to consider not just the estate of the Claimant but also the surrounding land. The Claimant’s solicitors asked Mr Beer to consider the residential properties immediately in the vicinity of the Defendants’ Land as well as the historic core of the village.
112)                      Despite these clear instructions, it is clear from his report and his oral evidence to the Court that Mr Beer was so enamoured of the Sussex Style that he decided to disregard those parts of his instructions that asked him to consider other buildings. Mr Beer therefore ignored those parts of the instructions of both the Court and those instructing him as far as they required him to consider anything which may detract from his passionate advocation of the Sussex Style.
113)                      Mr Beer also decided to ignore the facts as put before him in reaching his conclusions. For example, despite Mr Beer noting that he had been provided with the Claimant’s witness statement which notes that the First Defendant is obliged by the 1991 Covenant to maintain “stockproof fences,” on the southern boundary of his land, Mr Beer concluded (without the Claimant even advocating for such) that the southern boundary should be a flint wall.
114)                      Mr Beer’s explanation for ignoring his instructions and the facts was that as an expert he had discretion when producing his report. I accept that experts have a level of discretion when producing their reports and that they can emphasise for the Court the factors that they opine are most important or influential in reaching the opinion they have. However, it is not for an expert to disregard the instructions they have received from the Court and the party instructing them and to thereby whole scale ignore evidence which does not support their opinion.
115)                      In my judgment, an independent expert properly fulfilling his duties to a Court answers the questions asked of him by the Court having looked at all the relevant factors, not just the factors that tend one way. If the answers based on all the relevant factors raise difficulties for their client so be it. Mr Beer was not therefore entitled to ignore Little Beeches, Maryland, Medleigh and Birling House, the nearest properties to the Defendants’ Land, when producing his report. Having undertaken a site visit those nearest properties to the Defendants’ Land are not part of the historic core of East Dean and do not fit the Sussex Style. Yet Mr Beer singularly ignores that fact and only addresses the second issue regarding the Claimant’s Land and the Estate, not the surrounding land. In my judgment he thereby refused to engage with the second issue he was instructed to address to assist the Court and in doing so he ignored his duties to the Court. His evidence must therefore be treated with care.
116)                      Mr Samuel was subject to strong criticism by Ms Shea QC in closing submissions. I do not accept all her criticisms of him and do not accept that his reference to the earlier planning permission granted to Ben Ellis in 2018 shows that Mr Samuel was confused as to the Scheme he was to consider given the part of his report in which Mr Samuel referred to that planning decision sets out the full planning history including the Defendants’ applications. Having said this I am satisfied that Mr Samuel placed too much relevance on the grants of planning permission.
117)                      The interests of a private landowner are different to those of a planning authority. The planning authority is seeking to comply with its public law duty for the benefit of the public. A private landowner must comply with the duty of reasonableness to protect his own land. Planning applications and covenant applications therefore seek to achieve different ends through different means. That is not to say that a covenantee faced with an application for permission cannot have regard to the planning process. It is commonly the case the documents submitted for consent are planning documents. Where they are not given, they are publicly available documents that can be taken into account. However, planning and consent applications are different, and the grant of planning does not mean that permission must be granted. Each process must be analysed independently with regard to the group or land which is to be benefitted by the process.
118)                      The Claimant therefore was entitled to take into account planning documents, but he was not bound to follow the planning decision, nor was he required to apply planning policies when reaching his decision. The weight of Mr Samuel’s evidence however was formulated on the basis that planning policy should have influenced the decision of the Claimant.
119)                      Further I accept Ms Shea QC’s criticism that Mr Samuel was partisan to the Defendants as demonstrated by his frequent overstepping of the bounds of his instructions both in his written report and in his oral evidence and his refusal to answer questions which were averse to the view he professed.
120)                      Mr Samuel again knew the questions he was to answer and therefore the limits of his role. He knew he was to provide an opinion on the issues identified by Master Shuman to assist the Court in its role in determining the issues. He was not to give an opinion as to whether the reasons given by the Claimant for refusing permission were reasonable.
121)                      Despite this in both his written report and his oral evidence Mr Samuel continually stepped over the line. He referred to the Claimant’s objections as inappropriate, but it was not his job to assess the merits of the Claimant’s objections. He refused to answer how he could consider that increased flint levels on the design would be inappropriate, but the First Defendant had requested them. Instead of answering the question Mr Samuel sought to find a reason for the First Defendant’s position (being conciliatory to the Claimant) but in doing so he ignored the First Defendant’s testimony to the Court. Mr Samuel could have simply answered the questions but chose instead to engage in wild speculation ignoring the facts as tendered in evidence to the Court. This is not appropriate for an expert as it does not show objectivity, independence and it in no way assisted this Court. In my judgment this can only be explained by Mr Samuel taking a partisan position in the proceedings.
122)                      As a result of my findings the evidence of both experts must, in my judgment be treated with care, and should only be accepted where tested during oral testimony to the Court, with most weight given to any concessions made by the relevant expert.