AN EXPERT WHO SHOULD LEARN THE RULES BEFORE REPORTING AGAIN: CLAIMANT COMES TO GRIEF
We are taking a short break from the detailed examination of issues relating to service of the claim form to look at another common issue on this blog – an expert that failed to comply with the rules. I am…
EXPERT EVIDENCE: AN EXAMPLE OF AN EXPERT BEING UNBALANCED (FROM 2015).
Looking back at previous posts there are, numerous, indeed hundreds, where the courts have considered the role of experts. The cases that appear on this blog tend to be where judges have found the experts wanting. It almost feels unfair…
EXPERT EVIDENCE: COURT OF APPEAL STATE WHY THE JUDGE SHOULD BE WARY OF RELYING ON SCIENTIFIC PAPERS
In D and A (Fact-Finding : Research Literature) [2024] EWCA Civ 663 the Court of Appeal set out a clear warning about the dangers of trial judges analysing research literature in detail. The literature should be read through the prism…
WHEN THE JUDGE PREFERS ONE EXPERT WITNESS OVER ANOTHER: A CLINICAL NEGLIGENCE EXAMPLE
In Woods v Doncaster And Bassetlaw Teaching Hospitals NHS Foundation Trust [2024] EWHC 1432 (KB) Mrs Justice Lambert preferred the claimant’s expert evidence to that that of the defendant. This was not because either expert was unduly partisan. Rather it…
APPEAL COURT OVERTURNS JUDGE’S REFUSAL TO RELY ON OWN EXPERT WHEN HE DID NOT AGREE WITH THE JOINTLY INSTRUCTED EXPERT: THE “STAGGERED APPROACH” IS IMPORTANT
In Seneschall v Trisant Foods Ltd & Ors [2024] EWHC 1380 (Ch) Mr Justice Adam Johnson overturned a decision whereby a party was refused permission to rely on their own expert report. The judgment is important because it emphasises the…
UNCONTROVERTED EXPERT EVIDENCE: THE TRIAL JUDGE WAS NOT ENTITLED TO OVERRIDE THE UNQUESTIONED REPORT: GRIFFITHS -v- TUI LEADS TO CLAIMANTS BEING SUCCESSFUL ON APPEAL
I am grateful to Jatinder Paul from Irwin Mitchell for sending me a copy of the decision of HHJ Humphreys in the Wrexham County Court. The report involves a personal injury case alleging negligence which led to food poisoning which…
EXPERT EVIDENCE, ADJOURNMENTS, CAPACITY AND APPLICATIONS TO COMMIT FOR CONTEMPT: COURT OF APPEAL UPHOLDS DECISION AT FIRST INSTANCE
In Solicitors Regulation Authority Ltd v Khan & Ors [2024] EWCA Civ 53 the Court of Appeal considered the issue of expert evidence in relation to capacity, in the context of applications for contempt of court. It was held that…
THE REAL DANGER OF LAWYERS GETTING INVOLVED IN THE JOINT STATEMENT OF EXPERTS: IT IS WRONG AND IT IS COSTLY: A CASE THAT ILLUSTRATES THE POINT
In Glover & Anor v Fluid Structural Engineers & Technical Designers Ltd & Ors [2024] EWHC 1257 (TCC) Mr Simon Lofthouse K.C., sitting as a High Court Judge, considered the issues that arose when a party had tried to influence…
COST BITES 153: ANOTHER ROUND IN THE BREAKDOWN OF MEDICAL REPORT FEES ONGOING SAGA: THE INVOICE SHOULD PROVIDE A BREAKDOWN
I am grateful to Simon Fisher from DWF for providing me with a copy of the judgment of Senior Costs Judge Gordon-Saker in CXR -v- Dome Holdings Limited, a copy of the judgment is available here CXR v Dome…
CROSS-EXAMINING EXPERTS: USEFUL GUIDES AND HINTS
There are hundreds of posts on this blog about the role of experts in civil litigation. In many of those cases the experts have been cross-examined and this has not ended well – for them. I have already planned a…
IS A PARTY ENTITLED TO SEE THEIR OPPONENT’S CORRESPONDENCE WITH AN EXPERT LEADING UP TO THE JOINT MEETING? AN ISSUE THAT IS IMPORTANT – BUT UNDECIDED
In Frasers Group plc v Saxo Bank AS & Anor [2024] EWHC 188 (Comm) HHJ Pelling KC considered issues relating to whether a party’s correspondence with their expert leading up to the joint meeting of experts should be disclosed. The…
A COURT CANNOT SIMPLY IGNORE AN UNCHALLENGED EXPERT REPORT: DOG SAVED BY THE ADMINISTRATIVE COURT
The significance of unchallenged expert evidence at court was considered by the Administrative Court in Fitzgerald v CPS [2024] EWHC 869 (Admin). Although this is a criminal case it considers the authorities in civil actions and the central point that…
PROVING THINGS 237: CLAIMANT FAILS TO PROVE ITS CASE, FAILS TO PROVE IT HAD SUFFERED DAMAGES HAD IT SUCCEEDED (SOMETHING ABOUT EXPERT EVIDENCE TOO)
In Hamsard One Thousand And Forty-Three Ltd v AE Insurance Brokers Ltd [2024] EWHC 262 (Comm) the claimant failed to establish its case. The judgment shows many issues with the claimant’s evidence, in particular the problems that flowed from issues…
CHANGES TO THE FIXED COSTS RULES 2: 20 PAGES IN AN EXPERT’S REPORT DOES NOT MEAN 20 PAGES
Another change being introduced on the 6th April 2024 is a change (or possibly clarification) in relation to to the number of pages in an expert report in the Intermediate Track. The substantive report is still limited to 20 pages….
EXPERTS IN THE COURTS IN 2023: ESSENTIAL POINTS FOR PRACTITIONERS AND EXPERTS: WEBINAR 24th JANUARY 2024
Keen readers will note that already this week there have been two cases reported on this blog where the conduct or “expertise” of experts have been subject to judicial criticism. Issues relating to expert evidence in litigation have been a…
EXPERTS NOT QUALIFIED TO COMMENT ON THE MATTERS THEY DID: ADMINISTRATIVE COURT DECISION
Another example of expert evidence going awry can be seen in the judgment of Mr Justice Ritchie in Balachandra v The General Dental Council [2024] EWHC 18 . The experts in question were giving evidence in relation to matters that…
“AN EXPERT WITNESS IS NOT HELPING THE COURT BY TRYING TO MAKE THE EVIDENCE FIT THEIR OWN CONCLUSIONS”: JUDGE FINDS EXPERT “UNPROFESSIONAL AND UNACCEPTABLE”
In LCC v V & B [2023] EWFC 268 HHJ Booth commented on one of the expert witnesses. He found that the evidence given involved conjecture. The criticism of the expert is robust. “An expert witness is not helping…
MR BATES AND THE POST OFFICE: LOOKING BACK TO THE CASE OF THE YEAR 2019
Yesterday I noticed that a post I had written in 2019 was suddenly gaining a lot of readers. I suspect that this was due to the power of television. Not that the blog was being advertised, but that the series…
GRIFFITHS -v- TUI: SUPREME COURT FINDS FOR THE CLAIMANT: THE TRIAL WAS UNFAIR: POINTS SHOULD HAVE BEEN PUT TO THE EXPERT
In a judgment today TUI UK Ltd v Griffiths [2023] UKSC 48 the Supreme Court overturned the decision of the majority of the Court of Appeal. It is an important decision on procedural fairness. In particular the duty of a…
EXPERTS IN THE COURTS IN 2023: WEBINAR 24TH JANUARY 2024: ESSENTIAL ISSUES FOR ALL LITIGATORS AND EXPERTS
Over the course of 2023 we saw many cases in which the conduct of experts and those who instruct them came under close scrutiny and criticism in the courts. I am presenting a webinar on the 24th January 2024 reviewing…
DECISION TO DISMISS CLAIM BECAUSE OF ABSENCE OF EXPERT EVIDENCE UPHELD ON APPEAL:
We are looking at the second part of the decision in Doyle v HDI Global Specialty SE [2023] EWHC 2722 (KB). The post yesterday looked at the decision in Doyle. Here we look at the judgment in Rowe, the other case…
LITIGATORS: IF YOU DON’T PAY YOUR EXPERTS AND THEY ARE NOT COMING TO TRIAL, DON’T BE SURPRISED IF YOUR ACTION FAILS
The judgment of Mr Justice Freedman in Doyle v HDI Global Specialty SE [2023] EWHC 2722 (KB) shows a surprising set of facts when an expert wrote directly to the court. The expert made it clear that he was not…
CLAIMANTS NOT GIVEN PERMISSION TO RELY ON EXPERT EVIDENCE: THE EVIDENCE WOULD NOT ASSIST THE COURT IN ITS TASK (WITH A FEW OTHER REASONS)
In Wambura & Ors v Barrick TZ Ltd & Anor [2023] EWHC 2582 (KB) Master Stevens rejected the claimants’ application to call an expert. The judge contains a detailed consideration of the law and authorities relating to the court’s discretion…
PARTY NOT PERMITTED TO ADDUCE EXPERT EVIDENCE FROM OTHER CASES AS HEARSAY EVIDENCE
One of the issues decided by Mr Justice Mellor in Crypto Open Patent Alliance v Wright [2023] EWHC 2408 (Ch) related to the attempts by a party (COPA) to adduce expert evidence from other trials by way of hearsay evidence…
AN EXPERT SHOULD HAVE EXPERTISE IN THE ISSUE THEY ARE GIVING EVIDENCE ON: THEY CAN’T SIMPLY TEACH THEMSELVES FOR THE PURPOSE OF THE CASE
There are some important observations on expert evidence in the judgment of Mrs Justice Bacon in Sycurio Ltd v PCI-Pal PLC & Anor [2023] EWHC 2161 (Pat). An expert must give evidence within the scope of their expertise. To assert…
PROVING THINGS 232: CAR FIRES AND EXPERT EVIDENCE: WHY EXPERTS SHOULD MIND THEIR LANGUAGE: A MOVE FROM “MUST” TO “MORE THAN PROBABLE” REPRESENTS A SIGNIFICANT CHANGE
The judgment of Mr Justice Freedman in Nash v Volskwagen Financial Services (UK) Ltd [2023] EWHC 2326 (KB) contains important observations in relation to the law and evidence relating to causation. However I want to look at the judge’s consideration…
COST BITES 98: THE SIMILARITIES IN MEDICAL REPORTS SHOULD BE REFLECTED IN THE COSTS OF REPORTS
We are returning again to HD v Northern Devon Healthcare NHS Trust [2023] EWHC 2118 (SCCO) Costs Judge James considered the sums that should be allowed in relation to the claimants’ medical reports. This involved a close examination of the reports…
WHEN THE PARTIES COULD NOT AGREE WHO THE JOINT EXPERT SHOULD BE: FAILURE TO ENGAGE COST THE CLAIMANT
I cannot remember many judgments where the sole issue has been who the jointly instructed expert should be. However we have such a case in the judgment of Mr Nicholas Thompsell (sitting as a High Court judge) in Gheewalla v…
EXPERTS: WHY IT IS UNWISE FOR A CLAIMANT TO BE AT A JOINT MEETING ON SITE: WHO SAYS YOU ARE GOING TO BE ABLE TO CALL EXPERT EVIDENCE ANYWAY? HIGH COURT DECISION
We are returning to the judgment of Mr Justice Cotter in Jennings v Otis Ltd & Anor [2023] EWHC 2039 (KB). This time looking at the observations made in relation to experts. Firstly it was unwise for a claimant to be present,…
EXPERTS AND THE COURTS: THE DUTY TO INFORM EXPERTS OF CHANGE OF CIRCUMSTANCES: THE EXPERT’S DUTY TO INFORM THE COURT AND PARTIES OF A CHANGE OF VIEWS
We are looking again at the judgment of Mr Justice Cotter in Scarcliffe -v- Bramton Valley Group Ltd [2023] EWHC 1565 (KB) (A copy of the judgment, on Old Square Chambers website, is available here.) Again we are looking at the judge’s comments…
EVIDENCE OF EXPERTS SHOULD BE SCRUTINISED AND NOT SIMPLY TRANSPOSED INTO SCHEDULES: “A CARE EXPERT SHOULD BE ABLE TO FULLY JUSTIFY ANY ASPECT OF CARE… WHICH THE COURT IS BEING ADVISED SHOULD BE PROVIDED”
In Scarcliffe -v- Bramton Valley Group Ltd [2023] EWHC 1565 (KB) Mr Justice Cotter sent out another warning about the inadequate state of expert reports. Here we look at the judgment in relation to the care experts. (A copy of…
FOUR INTERESTING POSTS ON EXPERTS: HOW TO CROSS-EXAMINE, HOW TO INSTRUCT, DON’T BE LATE AND – WHATEVER YOU DO – DON’T DO THIS
Expert evidence has been a regular feature on this blog. Here we are looking at four posts from June 2014 which give rise to issues that resonate today. Advice on cross-examining experts, consideration of instructing experts, an attempt to introduce…
BE CAREFUL WHEN INSTRUCTING AN EXPERT: TEST THEIR EVIDENCE BEFORE TRIAL: THE CONSEQUENCES FOR YOUR CLIENTS COULD BE PROFOUND
We have looked at the decision in relation to costs in the case of ABC & Ors v Derbyshire County Council & Anor [2023] EWHC 986 (KB) in an earlier post. The decision on costs, and the primary judgment on…
WHEN AN EXPERT DECLAIMS A POINT “WITH A LEVEL OF SCIENTIFIC CERTAINTY”: BUT THE HANDWRITING SAMPLE WAS NOT FROM THE CLAIMANT
There are plenty of examples of difficulties with expert’s giving evidence on this blog. Another example of problematic expert report can be seen in the judgment of Mr Justice Saini in Packham v Wightman & Ors [2023] EWHC 1256 (KB)….
COST BITES 84: MEDICAL AGENCY MUST PROVIDE A BREAKDOWN OF ITS BILL TO SHOW WHAT THE EXPERT WAS PAID: DECISION ON APPEAL
I am grateful to my colleague Paul Hughes for providing me with a copy of the judgment of HHJ Bird in Northampton General Hospital NHS Trust -v- Hoskin, County Court at Manchester22nd May 2023, a copy is available here HoskinsAppealJudgment. …
THE KING’S BENCH DIVISION GUIDE: THE NEW BITS (1): LAWYERS STAY OUT OF THE MEETING OF EXPERTS
A new edition of the King’s Bench Division Guide was published last week (although it is dated March 2023). I will take a short look at the major changes. Firstly looking at a new passage in relation to the instruction…
BEWARE OF OVER-EAGER EXPERTS: AN EXPERT THAT SIMPLY ADDRESSES THE POINTS THAT SUPPORTS THEIR HYPOTHESIS IS HEADING FOR TROUBLE
In Rowbottom v The Estate of Peter Howard, Deceased & Anor [2023] EWHC 931 (KB) HHL Sephton KC (sitting as a High Court Judge) was critical of the role of one of the experts in the case. “A second reason…
EXPERT WITNESS OBTAINS ANONYMITY: BUT THEIR TONE DEMONSTRATED DISRESPECT FOR THE COURT
An earlier post dealt with the judge’s decision in M v F & Anor [2022] EWFC. However there is a subsequent judgment that demonstrates an extraordinary response on the part of the expert involved. In a second judgment, M v F &…
PARTS OF THE EXPERT’S REPORT SHOULD HAVE BEEN A RED FLAG TO LAWYERS: JUDGE CONSIDERS WHETHER THE PARTIES HAD INSTRUCTED THE CORRECT EXPERT
In M v F & Anor [2022] EWFC 186 Recorder Reed set out the importance of an expert knowing, and complying with, the rules relating to the presentation of expert evidence. The judgment also emphasises the importance of the lawyers…
COURT GRANTS PERMISSION TO CLAIMANTS TO CHANGE EXPERTS: BUT WITH CONDITIONS
The principles relating to the court granting permission to a party to change expert were considered in detail by Mrs Justice O’Farrell in Avantage (Cheshire) Ltd & Ors v GB Building Solutions Ltd & Ors [2023] EWHC 802 (TCC). The…
HANDWRITING EXPERTS COME UNDER THE MICROSCOPE: CLAIMANT’S EVIDENCE NOT ACCEPTED
Issues relating to handwriting experts comprise a surprisingly large percentage of the search terms that lead to this blog. The question of the quality of such experts was considered by Master Clark in Watts v Watts [2023] EWHC 679 (Ch)….
PROVING THINGS 249: APPELLANT FAILS TO PROVE LACK OF CAPACITY: SHORTFALLS WITH THE EXPERT EVIDENCE
In Cannon v Bar Standards Board [2023] EWCA Civ 278 the Court of Appeal held that expert evidence placed before it failed to establish that an appellant lacked capacity. The case provides importance guidance about the nature and quality of…
EXPERTS IN COURT: THE DUTY TO POINT OUT CONFLICTS OF INTERESTS AND COMPLY WITH THE RULES
There have been a few cases recently where the actions of expert witnesses have come under the spotlight. I am grateful to barrister Henry Bankes-Jones for sending me a copy of the judgment of HHJ Baucher in Arrassey Properties Limited…
COURT REFUSES CLAIMANT’S APPLICATION TO EXCLUDE DEFENDANT’S EXPERT EVIDENCE: A TRIAL JUDGE CAN HANDLE EXPERT WITNESSES AT EVERY POINT OF THE SPECTRUM
In Fawcett & Ors v TUI UK Ltd [2023] EWHC 400 (KB) Mr Dexter Dias KC (setting as a Deputy High Court Judge) refused the claimant’s application to exclude the defendant’s expert evidence. The matters to which the claimant objected…
SPORTING INJURIES AND CIVIL EVIDENCE: WHEN THE DEFENDANT’S EXPERT CONCEDES THE CLAIMANT’S CASE IN CROSS-EXAMINATION
The judgment of Mr Justice Martin Spencer in Czernuszka v King [2023] EWHC 380 (KB) contains important observations in relation to the duty of care owed to those taking place in sporting activities. It also shows the important role of…
JUDGMENT OF A FINDING OF FUNDAMENTAL DISHONESTY – BUT THIS CASE GOES MUCH FURTHER: COLLUSION IS FOUND
Here we are looking at a case where District Judge Lumb made a clear finding of fundamental dishonesty on the part of a personal injury claimant. That finding was confirmed, or perhaps compounded, by the judge’s views in relation to…
YOU’VE INSTRUCTED THE WRONG EXPERT: AND THIS HAS MAJOR CONSEQUENCES
We are returning to the judgment of Mr Justice Ritchie in GKE v Gunning [2023] EWHC 332 (KB). This time to look at the judge’s observations on the claimant’s expert on liability. The judge observed that the claimant had instructed the…
NON-PARTY COSTS ORDER AGAINST EXPERT WITNESS SET ASIDE ON APPEAL: THE FACT THAT AN EXPERT’S CONCLUSIONS CAN BE CRITICISED DOES NOT AMOUNT TO A FLAGRANT DISREGARD OF THEIR DUTY
I am grateful to barrister Nadia Whittaker for sending me a copy of the judgment of Mr Justice Sweeting in Robinson -v- Liverpool Hospitals NHS Trust and Mercier [2023] EWHC 21 (KB), a copy of the judgment is available here. …
EXPERT EVIDENCE: KING CRIMSON, KANYE WEST: CONSIDERATION OF THE PRINCIPLES (AND THE COSTS): WE ARE IN THE 21st CENTURY NOW
In Declan Colgan Music Ltd v Umg Recordings, Inc [2023] EWHC 4 (Ch) Deputy Master Henderson refused the claimant’s application for permission to call expert evidence in relation to the construction and consequences of an agreement to licence music. There…
CLAIMANT SHOULD HAVE BEEN GIVEN PERMISSION TO RELY ON EXPERT EVIDENCE ON DEPUTYSHIP AND COURT OF PROTECTION COSTS: SUCCESSFUL APPEAL TO THE HIGH COURT
I am grateful to Daniel Slade from Express Solicitors for sending me a copy of the decision of Mr Justice Soole in AAA -v- BBB [2022] EWHC 3103 (KB). It is a case where the claimant was successful in appealing…
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