“HE LACKED THE NECESSARY EXPERTISE TO SUBSTANTIATE AND JUSTIFY HIS CONCLUSION”: A CASE WHERE NO SPECIFIC RELIANCE WAS PLACED ON AN EXPERT’S EVIDENCE
In Eaton v Auto-Cycle Union Ltd & Ors [2022] EWHC 2642 (KB) Mr Justice Turner was critical of the expert evidence called by the claimant. “Quite simply, he lacked the necessary expertise to substantiate and justify his conclusions. It…
WEBINAR ON CARE, AIDS & APPLIANCES CLAIMS AFTER MUYEPA -v- THE MINISTRY OF DEFENCE: 18th NOVEMBER 2022
I have already written three times about the judgment of Mr Justice Cotter in Muyepa v Ministry of Defence [2022] EWHC 2648 (KB). I have not explored in detail the important observations in that judgment in relation to claiming, and presenting,…
EXPERTS SHOULD CONSTANTLY REMIND THEMSELVES THROUGHOUT THE LITIGATION THAT THEY ARE NOT PART OF THE LITIGANT’S “TEAM”: JUDGE CRITICAL OF PARTISAN APPROACH
We are, again, mining the judgment of Mr Justice Cotter in Muyepa v Ministry of Defence [2022] EWHC 2648 (KB). This time in relation to the judge’s comments and findings in relation to the expert evidence, in particular the non-medical evidence…
JUDGE FINDS PROCESS BY WHICH EXPERT REPORT OBTAINED “SO FLAWED, AND THE MATERIAL ON WHICH IT IS BASED SO LIMITED AND CONJECTURAL THAT IT WOULD BE ENTIRELY WRONG FOR ME TO PLACE ANY WEIGHT ON IT WHATSOVER”
In de Renee v Galbraith-Marten [2022] EWFC 118 Mr Justice Mostyn commented on an expert report that one of the parties sought to introduce. The report had been obtained in breach of the rules. It did not comply with the…
PROVING THINGS 238: THE ABSENCE OF EVIDENCE ON LIFE EXPECTANCY LEADS TO A PREDICTABLE RESULT
There are several reasons I want to look at the judgment of David Allan KC (sitting as a Deputy High Court Judge) in Riley v Salford Royal NHS Foundation Trust [2022] EWHC 2417 (KB). The first reason relates to the…
CHOOSING AN EXPERT: AN ACADEMIC OR PRACTICAL EXPERIENCE: HOW WILL THEY PERFORM WHEN THEY GET THE BIT BETWEEN THEIR TEETH?
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)…
EXPERT WITNESSES SHOULD KEEP AN OPEN MIND AND CAN PROPERLY CHANGE THEIR VIEW AS THE CASE PROGRESSES
In A Local Authority v AA & Anor [2022] EWHC 2321 (Fam) Mrs Justice Lieven rejected criticism of an expert witness who had changed their view throughout the course of the case. Experts must keep an open mind and it…
EXPERT EVIDENCE IN THE COURTS IN 2022 – REVIEW AND GUIDANCE: DON’T LET THESE PROBLEMS HAPPEN TO YOU: WEBINAR 14th DECEMBER 2022
As the two posts on this blog yesterday showed there appears to be a never ending problem with expert evidence. This year there have been over a dozen cases about expert evidence reported on this blog alone, all of them…
EXPERTS GIVING EVIDENCE DO NOT HAVE AN EXPECTATION OF ANONYMITY: MATTERS OF FREE SPEECH ARE IN ISSUE
The previous post dealt with the judgment of HHJ Richard Clarke in Hertfordshire County Council v Mother & Ors [2022] EWFC 106, in particular the critique of the expert evidence. In a subsequent judgment Hertfordshire County Council v Mother & Ors [2022]…
CLAIMANT COULD NOT OBTAIN AN INJUNCTION TO PREVENT THE USE OF A LETTER FROM AN EXPERT: AN APPARENT BREACH OF THE INDEPENDENCE PRINCIPLE
In Pickett v Balkind [2022] EWHC 2226 (TCC) HHJ Paul Matthews (sitting as a High Court Judge) refused the claimant’s application for an injunction to prevent the defendant relying on the contents of a letter from the claimant’s expert. That…
THE ROLE OF THE EXPERT WITNESS IN FINDING FACTS AND ASSESSING CREDIBILITY
The recent posts on the assessment of witness credibility led an expert witness to enquire whether it was the function of an expert to comment on issues relating to credibility. There have been a number of cases where judges have…
JUST BECAUSE A MATTER IS TECHNICALLY COMPLICATED DOES NOT MEAN THAT EXPERTS NEED ATTEND TRIAL
In Siemens Mobility Ltd v High Speed Two (HS2) Ltd [2022] EWHC 2190 (TCC) Mrs Justice O’Farrell considered an argument that the technical issues that arose in an action led to the need for experts to attend court. This argument…
AN EXPERT WHO TENDED TOWARDS BEING AN ADVOCATE: YOU SAID SOMETHING DIFFERENT IN ANOTHER CASE: THE NEED FOR A MEASURED RESPONSE
It may be indicative that there are such a large number of cases where judges have criticised experts for veering towards advocacy that I sometimes hesitate as to whether they merit writing about. However such a tendency was noted by…
FAILURE TO COMPLY WITH PROTOCOL LEADS TO COSTS OF A MEDICAL REPORT NOT BEING RECOVERED
I was informed recently that permission to appeal was refused in the case of Greyson -v- Fuller. I am grateful to Simon Fisher from DWF for sending me a copy of the decision in Glendining -v- McCarthy,* where DDJ Causton…
APPLICATION TO RELY ON EXPERT EVIDENCE REFUSED: THE RULES WERE NOT FOLLOWED AND THE REPORT WAS “FAR BELOW THE STANDARD OF ANALYSIS THAT THIS COURT IS ENTITLED TO EXPECT FROM AN EXPERT WITNESS”
In North Yorkshire Clinical Commissioning Group v E (Covid Vaccination) (Rev1) [2022] EWCOP 15 Mr Justice Poole disallowed an application by a respondent in relation to expert evidence. The expert had been instructed without compliance with the procedural rules in…
NINE YEARS ON IX: 2022: EXPERTS, STRIDENT LANGUAGE AND THE DUTY OWED TO THE COURT
In the final post of this series I have chosen a post from January 2022. There are many common themes on this blog: relief from sanctions; service of the claim form; Part 36; witness statements, among them. However it is…
DIRE ISSUES ARISE WHEN AN EXPERT FAILS TO COMPLY WITH THEIR OBLIGATIONS IN RELATION TO THE JOINT MEETING: FULL TRANSCRIPT NOW AVAILABLE
I have written before about the decision of Senior Master Fontaine in Andrews & Ors v Kronospan Ltd [2022] EWHC 479 (QB) where the claimants permission to rely on an expert witness was withdrawn because of conduct in relation to…
“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” (ANOTHER CASE ON EXPERTS…)
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…
EXPERT WHO WALKED “ON THE PAVEMENT HAND IN HAND” WITH THE CLIENT: EXPERT WITH ALL THE HALLMARKS OF THE MENTALITY OF AN ADVOCATE
We have already looked at the judgment of Mr Justice Mostyn in Gallagher v Gallagher (No.2) (Financial Remedies) [2022] EWFC 53 in relation to costs. There are some telling observations in that judgment in relation to the role of the expert…
PROVING THINGS 232: “THE RULES OF THE GAME OF ASSOCIATION FOOTBALL HAVE NOT BEEN DRAFTED WITH CIVIL LIABILITY IN MIND”: APPEAL LEADS TO OVERTURNING OF JUDGMENT ON FOOTBALLER’S NEGLIGENCE: A REMATCH IS ORDERED
In Fulham Football Club v Jones [2022] EWHC 1108 (QB) Mr Justice Lane allowed an appeal in a case where a footballer had found to be negligent when tackling an opponent. The judgment considers the issue of liability in the…
AN EXPERT REPORT THAT DID NOT COMPLY WITH PRACTICALLY EVERY REQUIREMENT OF CPR 35: IT FAILS TO PERSUADE THE COURT
An example of the importance of the format of an expert report can be found in the judgment of Master David Cook in Pal -v- Damen [2022] EWHC 004697 (QB). It is a decision that shows that the courts will…
THE JOINT MEETING OF EXPERTS AND THE JOINTLY INSTRUCTED EXPERT: KEY ISSUES, PROBLEM AREAS AND PRACTICAL SOLUTIONS: WEBINAR 30th JUNE 2022
We have recently seen a case where a party disallowed from using an expert due to conduct at the joint meeting of experts stage. The meeting of experts is now a key stage in much major litigation. Knowledge of the…
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…
THE COURT WILL GRANT A DECLARATION THAT AN ED SHEERAN SONG DID NOT BREACH COPYWRIGHT: OH WHY PUT YOURSELF THROUGH THIS
The judgment of Mr Justice Zacarolli in Sheeran & Ors v Chokri & Ors [2022] EWHC 827 (Ch) contains some observations as to why the court should grant a declaration that a song had not breached another composer’s copyright. The…
EXPERT EVIDENCE: KNOWING WHERE IT CAN ALL GO WRONG – AND AVOIDING PROBLEMS BEFORE THEY OCCUR:WEBINAR ON EXPERTS AND FOR EXPERTS: 21st MARCH 2022
A number of recent cases have emphasised the importance of those who instruct experts, and experts themselves, being fully aware of the nature and scope of the duties of an expert. This webinar looks at cases where experts have gone…
EXPERTS GOING WRONG – AGAIN : THIS TIME IT HAS COST (SOMEONE) £225,000: THE WORK TURNS INTO DUST
It is rare for me to write about judgments from secondary sources. However the judgment of Senior Master Fontaine in Patricia Andrews & Ors v Kronospan Limited [2022] EWHC 479 (QB) is noted in two reliable sources and it is a case…
PUTTING A CAP ON THE COSTS OF A SINGLE JOINT EXPERT: AN UNHAPPY TALE WITH LESSONS TO BE LEARNT
For the second time today I am writing about a case concerning a jointly instructed expert. In Loggie v Loggie [2022] EWFC 2 Mr Justice Mostyn had to determine who should pay the costs of an expert whose final costs…
NO DUTY OF CARE OWED BY A JOINTLY INSTRUCTED EXPERT (ON THE FACTS OF THIS CASE): EXPERTS GIVING EVIDENCE ABOUT BEING EXPERTS: MUCH TO READ HERE
The judgment of Mrs Justice Lambert in Radia v Marks [2022] EWHC 145 (QB) is essential reading for anyone who instructs experts in litigation. It is also essential reading for experts. The judge dismissed a claim in negligence against a…
WHEN A CLAIMANT APPEARS AS THEIR OWN EXPERT WITNESS: IT RARELY ENDS WELL
In Tehrani v Hamilton Bonaduz AG & Ors [2021] EWHC 3457 (IPEC) HHJ Hacon considered a case where a claimant appeared as their own expert witness. THE CASE The claimant, a professor, brought an action asserting that the defendant…
WHEN A CLAIMANT RELIES ON EXPERT EVIDENCE TO PROVE LIABILITY: THE (NOT SO) SLIPPERY SLOPE TO FAILURE
I am grateful to barrister Frederick Simpson for sending me his note of a decision where the claimant relied heavily on expert evidence in order to establish their claim. There were weaknesses in the report which contributed to the claimant’s…
EXPERT HAD A “FLAGRANT DISREGARD FOR HIS DUTY TO THE COURT”: ORDERED TO PAY £50,500 WASTED COSTS
NB – THE COSTS ORDER AGAINST THE EXPERT IN THIS CASE WAS OVERTURNED ON APPEAL. THE JUDGMENT ON APPEAL CAN BE FOUND HERE. The judgment of Recorder Hudson in Robinson -v- Liverpool University Hospital NHS Foundation Trust & Dr Chris…
WHEN YOUR CASE LARGELY RELIES ON EXPERT EVIDENCE: MAKE SURE YOUR EXPERT IS NOT VIEWED AS BEING PARTISAN
The judgment of Mrs Justice Moulder today in ECU Group PLC v HSBC Bank PLC & Ors [2021] EWHC 2875 (Comm) contains another example of the dangers of relying on expert evidence. The judge did not accept the evidence of…
LATE, AND BROAD, APPLICATION TO RELY ON EXPERT EVIDENCE REFUSED: HIGH COURT DECISION
In BES Commercial Electricity Ltd & Ors v Cheshire West & Chester Council [2021] EWHC 2820 (QB) Mr Justice Calver refused a very late application to adduce expert evidence. The commentary in relation to witness statements is also interesting. The…
EXPERT EVIDENCE – UNDERSTANDING THE BASICS AND AVOIDING THE PITFALLS: WEBINAR 20th OCTOBER 2020
The last few months have seen a large number of cases where expert evidence has proved highly problematic (usually for the party calling the expert in question). On the 20th October 2021 I am giving a webinar “Expert Evidence -…
GRIFFITHS -V- TUI IN THE COURT OF APPEAL 3: THE CLAIMANT DID NOT HAVE A FAIR TRIAL: THE COURTS SHOULD NOT ALLOW LITIGATION BY AMBUSH: THE DISSENTING JUDGMENT
NB THE DECISION IN THIS CASE WAS OVERTURNED BY THE SUPREME COURT. THE SUPREME COURT ESSENTIALLY AGREEING WITH THE DISSENTING JUDGMENT OF BEAN LJ CONSIDERED IN THIS POST. THE SUPREME COURT DECISION IS DISCUSSED HERE. This is the third post…
GRIFFITHS -v- TUI IN THE COURT OF APPEAL 2: THE OTHER GROUNDS OF APPEAL: AN EXPERT’S REPORT WITHOUT REASONING IS “ALL BUT WORTHLESS”
NB THE COURT OF APPEAL DECISION WAS SUBSEQUENTLY OVERTURNED BY THE SUPREME COURT – SEE THE DECISION HERE. This is the second post about the Court of Appeal decision in Griffiths v Tui (UK) Ltd [2021] EWCA Civ 1442. Here we…
GRIFFITHS -v- TUI IN THE COURT OF APPEAL (1): JUDGES AND EXPERTS: THE COURT IS NOT A RUBBER STAMP
NB THE COURT OF APPEAL DECISION IN GRIFFITHS WAS OVERTURNED BY THE SUPREME COURT, SEE THE DISCUSSION HERE. This is the first of a series of posts that consider the Court of Appeal judgment in Griffiths v Tui (UK) Ltd…
NO MATTER HOW BIG YOU ARE, OR HOW IMPORTANT (YOU THINK) YOU ARE – YOU HAVE TO COMPLY WITH THE RULES: SECRETARY OF STATE REFUSED PERMISSION TO RELY ON EXPERT EVIDENCE
In Good Law Project Ltd, R (On the Application Of) v Secretary of State for Health and Social Care [2021] EWHC 2595 (TCC) Mr Justice Fraser issued a clear and stark warning that expert evidence has to comply with the…
EXPERTS GIVING EVIDENCE IS “NOT A GAME”: £1.4 MILLION VALUATION FOUND TO BE £3,230
Another interesting part of the judgment of ICC Judge Barber in CSB 123 Ltd, Re [2021] EWHC 2506 (Ch) is the judge’s findings in relation to the expert evidence. It is rare for a judge to state to an expert witness…
SERIES OF WEBINARS ON CIVIL EVIDENCE: COMING TO YOUR SCREENS SOON
Now that the nights are drawing in people’s thoughts will, almost invariably, be drawn towards matters of civil evidence and the need to prove things. To cater for this I am presenting six webinars , covering key aspects of civil…
ATTEMPT TO INTRODUCE EXPERT EVIDENCE REFUSED: EVIDENCE NOT ADMISSIBLE AND APPLICATION MADE FAR TOO LATE
In Fraine v Foy [2021] EWHC 2302 (Ch) Master Clark refused an application to rely on expert evidence that was served the day before the hearing. The expert evidence was not relevant, not admissible and the application made far too…
A JOINT STATEMENT OF EXPERTS IS FOR THE BENEFIT OF THE COURT AND NOT A PROVING GROUND FOR THE PARTIES’ RESPECTIVE CASES: “OVERLAWYERED” REPORTS: LIMITATION AND DATE OF KNOWLEDGE:
In the judgment today in Aderounmu v Colvin [2021 EWHC 2293 (QB) Master Cook found that the claimant was not under a disability and the limitation period for bringing a personal injury action had expired. The Master exercised the discretion…
QUESTIONS TO EXPERT SHOULD HAVE BEEN PUT BEFORE THE TRIAL: THE WRITING MAY BE ON THE WALL FOR LATE CHALLENGES
For the second time in two days I am reporting on cases where judges made the point that issues relating to evidence should have been raised before trial. Yesterday Mr Justice Zacaroli held that issues in relation to disclosure should…
WHEN TWO EXPERTS ARE BETTER THAN ONE: IT MAY BE MORE ART THAN SCIENCE…
Many of the reported cases in relation to the courts and witness experts are about the judge restricting the use of experts. In Borro Ltd & Ors v Aitken [2021] EWHC 1902 (Ch) HHJ Johns QC (sitting as a High…
EXPERT EVIDENCE, NECESSARY EXPERTISE AND ADMISSIBILITY: BOP-ME, MASKS AND EXPERTISE
There is an interesting discussion of the use of expert evidence in the context of specialist proceedings in the judgment of Mr Justice Fraser in Bop-Me Ltd v Secretary of State for Health and Social Care (Rev 1) [2021] EWHC…
WHEN A PARTY WANTS TO CHANGE ITS EXPERT: PRE-ACTION REPORTS, “EXPERT SHOPPING” AND CANDOUR
In the judgment today in Rogerson (t/a Cottesmore Hotel, Golf and Country Club) v Eco Top Heat & Power Ltd [2021] EWHC 1807 (TCC) Mr Alexander Nissen QC (sitting as a Judge of the High Court) considered the circumstances in…
THE USE OF EXPERT WITNESSES TO CONSTRUE EUROPEAN DIRECTIVES AFTER BREXIT: HOW THE COURT WORKS WITH “ONE OR BOTH HANDS TIED BEHIND ITS BACK”
In Greenaway v Parrish & Ors [2021] EWHC 1506 (QB) Mr Justice Martin Spencer considered the “nightmare position” the courts are now in as a result of the European Union (Withdrawal) Act 2018 in relation to interpreting European Directives. This…
“THERE IS A WORRYING TREND… IN TERMS OF FAILURE BY EXPERTS GENERALLY IN LITIGATION COMPLYING WITH THEIR DUTIES”
There is an important point about a litigant’s responsibility for the conduct of their own experts (and expert’s conduct generally) in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd (No. 2 Costs) [2021] EWHC 1414 (TCC). This was…
NO NEED TO CALL CLAIMANT’S MEDICAL EXPERT IN A FAST TRACK TRIAL: MUST BE A GOOD REASON TO DEPART FROM THE NORMAL PROCEDURE
I am grateful to Claire Haley from Aegis Legal for sending me a copy of the judgement of HHJ Freedman in Taylor -v- TUI UK Limited (County Court at Newcastle 22nd January 2021). The judge overturned a decision that the…
MEDICAL AGENCY COSTS NOT RECOVERABLE IN FIXED COSTS REGIME: REPORT OF A DECISION
I am grateful to Simon Fisher of DWF for sending me a copy of the decision of Deputy District Judge Akers in Powles -v- Hemmings, a decision on the 23rd April 2021, a copy of which is available here Powles…
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