CHOOSING AN EXPERT: AN ACADEMIC OR PRACTICAL EXPERIENCE: HOW WILL THEY PERFORM WHEN THEY GET THE BIT BETWEEN THEIR TEETH?

October 5, 2022 · by · in Civil evidence, Expert evidence, Experts, Webinar

One of the difficult issues that has to be faced when instructing experts is whether to choose academic qualifications or practical experience.  This issue can be seen in the judgment of HHJ Melissa Clarke (sitting as a High Court Judge) in Schoultz v Ball & Ors [2022] EWHC 2452 (KB).

 

THE CASE

The judge was considering issues relating to liability following a road traffic accident caused by horses on the roadway.  The parties each instructed expert witnesses in relation to equine behaviour.

THE JUDGMENT ON EXPERTS

The judge compared the experience and expertise of each of the experts instructed. One academic, one more practical.
    1. The Claimant’s expert is Professor John Eddison (retired), formerly of the School of Biological Sciences at the University of Plymouth, expert in Animal Behaviour. He wrote a report dated 7 July 2020 and answered Part 35 Questions raised by the First Defendant on 17 August 2020. The First Defendant’s expert is Mr Charles William Selby Lane, expert in Equestrian Behaviour and Management. He wrote a report dated 24 June 2020 and answered Part 35 Questions raised by the Claimant on 29 July 2020. The Third Defendant’s expert is Ms Nicola Stephens, Equestrian Expert. Her report is dated 30 June 2020.
    1. The Equine Behavioural Experts produced a joint statement dated 8 October 2020. This is extremely detailed, and I will address such parts of it as I consider relevant to my necessary findings, and what follows from those findings, as I go through my judgment. Ms Stephens is ad idem with Mr Lane, and so I will focus on the evidence of Professor Eddison and Mr Lane, who are the two experts who gave oral evidence at trial.
    1. I note here that the experts agree that horses are social, herd and flight animals; that within a herd they can form sub-groups which split up, drift off, move around and meet up; that horses remain active during hours of darkness, sleeping for very short periods in a 24-hour period, more at night than day; that if a horse perceives a stimulus as threatening or averse, it will seek to avoid it or escape from it; that a horse will actively seek grazing beyond the boundary of its field if the grass in the field is of poor quality or insufficient quantity and the grass outside the field is of better quality and/or greater quantity.
    1. Mr Tavares notes that Professor Eddison is an academic with experience of farm animals generally, and in particular cattle, but with limited practical experience of horses, which were not the focus of his academic interest, as can be seen by his long list of academic publications, which do not include any on equine matters. Professor Eddison himself stated in cross-examination that he was not an equestrian and had limited experience of equestrian activities. Mr Tavares submits that his approach was academic and focused on physiological responses to averse stimuli, and the literature he relies on relates to, inter alia, cumulative chronic stress leading to equine illness, which is not relevant to the matters that I have to consider, which relate to behavioural responses to acute stresses. I think this is fair comment. Mr Hand in closing accepted that the papers he relied on do not really assist. It is for me to determine what these horses were doing and how they were behaving in the circumstances of the night of the index accident, without entering into the realms of academic speculation.
  1. There can be no doubt that Mr Lane has extensive practical experience of horses and horsemanship over his 40 year equestrian career: in the military (culminating in commanding The Kings Troop RHA); at the highest levels of British Eventing (including being Team Manager of the GB Three-Day Event Team during the Atlanta Olympics and when they became World and European Champions); as a riding instructor and equine lecturer. Mr Tavares described him as having experience in almost every circumstance in which horses find themselves which appears to be right, looking at his CV. He is well known as an equine expert in the Courts. Mr Hand accepts his long experience of dealing with horses, but submits that unlike Professor Eddison, Mr Lane does not have a strong academic background and objects to Mr Tavares suggestion that Professor Eddison is the weaker expert. I note that Mr Lane has a PGDip in Equine Science from the University College of Wales (Aberystwyth) but accept he comes from a different and more practically-focussed background to that of Professor Eddison. That is true but I do not consider it to undermine the quality of his evidence in this case. The two experts come from two different areas of expertise, but both have provided assistance to the Court. I generally prefer Mr Lane’s evidence about the likely behaviour of Fox and Lowri honed from years of living and working around horses and with them, and taking into account what he knew about these particular horses from Ms Ball’s evidence, to Professor Eddison’s more academic and often theoretical approach but there is much in his theory which has helped me in understanding the behaviour of the horses in this case.

WEBINAR ON EXPERT EVIDENCE IN THE COURTS IN 2022

There is a webinar on the 14th December 2022 on Expert evidence in the courts in 2022. Booking details are available here .

This webinar looks at decisions over the previous 12 months and the lessons that litigators and experts must learn from them.  The review includes cases where expert evidence has been disallowed, because of conduct by the expert or lawyers.  Costs orders against experts and actions where experts have been compelled to disclose all the material relied on.   The review looks across all areas of practice and is of relevance to all litigators and expert witnesses alike.

Cases to be considered include:

  • ECU Group PLC v HSBC Bank PLC & Ors [2021] EWHC 2875 (Comm) (was the expert being partial>)
  • Radia v Marks [2022] EWHC 145 (QB) (is a duty of care owed by a jointly instructed expert).
  • 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.”

  • Siemens Mobility Ltd v High Speed Two (HS2) Ltd [2022] EWHC 2190 (TCC) (need experts attend trial?)
  • Liverpool University Hospital NHS Foundation Trust & Dr Chris Mercier (Costs order against an expert).
  • Pickett v Balkind [2022] EWHC 2226 (TCC)  (Waiver of privilege in expert’s report).
  • Bitar v Bank of Beirut SAL [2022] EWHC 2163 (QB) (expert tending towards being an advocate).
  • Andrews & Ors v Kronospan Ltd [2022] EWHC 479 (QB) (Lawyers unduly intervening in the joint meeting process).

“It is important that the integrity of the expert discussion process is preserved so that the court, and the public, can have confidence that the court’s decisions are made on the basis of objective expert evidence. This is particularly important where, as here, the expert evidence is of a very technical nature so that the court is heavily reliant on the expert evidence being untainted by subjective considerations.”