EXPERTS CAN BE ASKED TO GIVE AN OPINION ON MATTERS OF FACT, EVEN WHEN THOSE FACTS ARE ULTIMATELY FOR THE COURT
There is a short passage in the judgment of Master Davison in The Owners of the “Christos Theo” v The Owners of the “Aliki” [2024] EWHC 2106 (Admlty) which deals with an issue rarely considered by the courts – how the questions to expert should be phrased.
“It is not a valid objection that the first part of the wording invites the experts to express an opinion on a matter of fact which is ultimately for the court. Experts often do that.”
THE CASE
The action concerned a collision (or perhaps a “near miss”) between two ships. One of the issues being considered was whether the engine in the claimant’s ship malfunctioned. Both parties had expert evidence on this issue. They disagreed as to the questions to be put to the experts. The judge held that it was appropriate for the experts to be asked questions and to express opinions about matters of fact that, ultimately, would be decided by the court.
THE JUDGMENT ON THE QUESTIONS TO THE EXPERTS
“28. The first is the wording of the question for the experts. I will adopt and approve the defendants’ proposed wording which was initially agreed by the claimants. It is not a valid objection that the first part of the wording invites the experts to express an opinion on a matter of fact which is ultimately for the court. Experts often do that. The question whether the main engine malfunctioned, is one which involves or resorts to expert input, so there is nothing inappropriate in them being free to express their views on this. I also see no problem with the use of the word “defectively”; that seems to me to encapsulate neatly the relevant inquiry. Further, this is the question that the marine engineers have hitherto been instructed to consider and neither has, to my knowledge, expressed any misgivings about the phrasing of it. By contrast, I find the wording suggested by Mr Turner KC to be somewhat vague and at one remove from the real guts of the issue which the experts must confront.”
WEBINAR – EXPERTS IN THE COURTS IN 2024 11th DECEMBER 2024
On the 11th December 2024 I am giving a webinar reviewing the key cases and comments on expert evidence throughout the year (this is another hour long webinar that could easily be extended to last a whole day).
Matters to be considered include:
- Experts reporting outside their expertise
- Experts in fundamental dishonesty cases
- Compliance with the rules
- Conduct and alleged misconduct.
Booking details are available here.