LAWYERS FAILURE TO PROVIDE OVERSIGHT OF EXPERTS LEADS TO EXCLUSION OF THEIR EVIDENCE: EXPERT EVIDENCE IS “NOT A MATTER OF RIGHT”
Over the years we have seen some biting judgments about the conduct of experts in civil litigation. I struggle to recall one as extraordinary as the judgment of Mrs Justice Joanna Smith in Dana UK AXLE Ltd v Freudenberg FST…
A PERSON GIVING EVIDENCE AS TO EARNINGS AND PENSION MAY (OR MAY NOT) BE AN EXPERT: COURT CONSIDERS THE ISSUES
Returning to the judgment of Mr Justice Cavangh in TVZ & Ors v Manchester City Football Club Ltd [2021] EWHC 1179 (QB) the judge considered, but did not decide, whether statements from third parties as to earnings and pensions were…
THE APPROPRIATE STEPS WHEN A JUDGE HAS LIMITED THE SCOPE OF EXPERT EVIDENCE: COMPLY WITH COURT ORDERS IF YOU WANT TO KEEP A GOOD IMAGE
Another aspect of the judgement of Master Davison in Mustard v Flower & Ors [2021] EWHC 846 (QB) was a decision in relation to expert evidence. The Master refused the claimant’s application to rely on amended medical reports. Those reports…
EXPERTS, CONFLICTS OF INTEREST AND THE DUTY OF DISCLOSURE: A REVIEW OF THE RULES AND CASES: HOW EXPERTS CAN AVOID HITTING THE NET
An earlier post looked at the decision of Mr Justice Mostyn in Bux v The General Medical Council [2021] EWHC 762. Part of that judgment dealt with the duties of experts to disclose an interest they have in the case. This…
EXPERT WITNESSES & CONFLICTS OF INTEREST: HIGH COURT UPHOLDS DECISION TO ERASE DOCTOR FROM RECORD BECAUSE OF HIS CONDUCT AS AN EXPERT WITNESS
Every litigator and, particularly, every expert witness should have a very close read of the judgment of Mr Justice Mostyn in Bux v The General Medical Council [2021] EWHC 762. Although it is a decision in the administrative court it…
SEEKING TO ADD A JOINT EXPERT INTO THE ACTION 2: A COSTLY PROCESS: INCURRING LIABILITY FOR £90,000 IN AN ATTEMPT TO RECOVER £16,000
I am grateful to my colleague Colm Nugent for giving me further details of the costs involved in the defendant’s unsuccessful application to join a joint expert into the action which was discussed in a post earlier today. Colm also…
FAILED ATTEMPT TO OBTAIN COSTS FROM A JOINT EXPERT: A LOT TO LEARN HERE
In Walker -v- TUI UK Limited (Manchester County Court 14th January 2021)* District Judge Obodai considered an application by the defendant to join a jointly instructed expert into the action as a party for the purpose of obtaining costs against…
EXPERTS NOT REALLY NECESSARY WHEN A JUDGE LOOKS AT BALLET SHOES: EVIDENCE SHOULD HAVE BEEN MORE EN POINTE
Instructing experts in circumstances where they are not necessary, or their evidence is not admissible, is a common theme in litigation. This issue was considered by Mr David Stone (sitting as a Deputy High Court Judge) in Rothy’s Inc v…
JUDGE REFUSES TO RECONSIDER CRITICISMS OF EXPERT WITNESS IN A JUDGMENT: EXPERT DUTIES CANNOT BE DELEGATED
In Neurim Pharmaceuticals (1991) Ltd & Anor v Generics UK Ltd (t\a MYLAN) [2020] EWHC 3270 (Pat) Mr Justice Marcus Smith made some observations about the role of the expert witness and the importance of their evidence being criticised in…
EXPERT EVIDENCE NOT ADMITTED: IT WAS NOT NECESSARY AND TOO COSTLY
It must be disheartening for parties who get to trial to find that the judge does not think that the “experts” they have instructed (at great cost) are not regarded by the courts as experts at all. This is exactly…
WHY AN EXPERT WITNESS MUST EXAMINE THE OBJECTIVE EVIDENCE: WHY MEDICAL RECORDS ARE NORMALLY THE KEY
There are several short passages in the judgment of HHJ Baucher in Ali v The Home Office [2020] EW Misc 27 (CC) which emphasises the need for expert witnesses to consider the objective evidence before reporting. It also shows the…
A “LACK OF OBJECTIVITY” IN AN EXPERT’S APPROACH: CLINICAL NEGLIGENCE AND CAUSATION CONSIDERED IN THE HIGH COURT
In Leach v North East Ambulance Service NHS Foundation Trust [2020] EWHC 2914 (QB) HHJ Freedman (sitting as a Deputy High Court Judge) made some telling observations about the lack of objectivity of the defendant’s expert. THE CASE The claimant…
WHEN A LITIGANT SEEKS TO DEFEND A CLAIM AT ALL COSTS: A HIGHWAY TO HELL: WHY, IN LITIGATION, IT IS IMPORTANT THAT YOU CAN SEE THE WOOD FOR THE TREES
The judgment of HHJ Mithani QC in Colar v Highways England Company Ltd [2019] EW Misc 17 (CC) has recently arrived on BAILLI. It provides an illustration of the danger of defending a claim “at all costs”. The judge was…
CLAIMANT IN LOW-VALUE PERSONAL INJURY CASE NOT ENTITLED TO RELY ON EXPERT REPORTS WHEN PROTOCOL NOT COMPLIED WITH: JUDGMENT ON APPEAL
In Mason -v- Laing (Bradford County Court 20th January 2020 Mason v Laing) HHJ Gosnell held that a claimant that failed to comply with the requirements as to instructing experts prior to a Stage 3 hearing could not rely on…
JUDGE WAS RIGHT TO REFUSE CLAIMANT’S APPLICATION TO ADJOURN AND NOT TO ALLOW SINGLE WITNESS IN PLACE OF JOINT WITNESS: HIGH COURT DECISION TODAY
In Hinson v Hare Realizations Ltd (2) [2020] EWHC 2386 (QB) Mr Justice Martin Spencer refused a claimant’s appeal where it was argued that a trial judge should have adjourned a trial and given the claimant permission to rely on…
GUIDANCE ON GIVING REMOTE EVIDENCE: ESSENTIAL READING FROM THE ACADEMY OF EXPERTS
The Academy of Experts have written Guidance on Giving Remote Evidence. Although this is aimed at expert witnesses there is much that anyone involved in litigation can take away from this. SELECTED EXTRACTS There is much that is useful. …
THE TREATMENT OF EXPERT EVIDENCE AND APPEALS: ANOTHER CASE WHERE A JUDGMENT IN FAVOUR OF A DEFENDANT IS OVERTURNED
There has been much online discussion about the impact that the decision in Griffiths v TUI UK Ltd [2020] EWHC 2268 (QB) will have in relation to food poisoning cases and more generally. That case related specifically to the treatment of…
EXPERT EVIDENCE UNDER THE MICROSCOPE: THE TRIAL JUDGE CANNOT OVERTURN CONCLUSIONS OF A “UNCONTROVERTED” EXPERT: HIGH COURT DECISION TODAY
NB THIS DECISION WAS SUBSEQUENTLY OVERTURNED BY THE COURT OF APPEAL. THE COURT OF APPEAL JUDGMENT IS CONSIDERED HERE. In Griffiths v TUI UK Ltd [2020] EWHC 2268 (QB) Mr Justice Martin Spencer considered the question of the approach of…
WHEN EXPERT EVIDENCE BECOMES REDUNDANT: “WE DO NOT HAVE TRIAL BY EXPERT IN THIS COUNTRY: WE HAVE TRIAL BY JUDGE”
There is an interesting judgment on expert evidence at Domeney v Rees & Ors [2020] EWHC 2115 (QB), where Master Davis considered whether accident reconstruction evidence was necessary in relation to a trial. “We do not have trial by…
CHANGES COMING INTO FORCE IN OCTOBER 1: CHANGES TO THE STATEMENTS GIVEN BY EXPERTS
The 122nd update Practice Direction Amendments come into force on the 1st October 2020. We have already looked at the changes to the rules relating to proceedings for contempt. Here we look at the change relating to the declaration that…
THE INSTRUCTION OF EXPERTS : LOOKING AT GUIDANCE FROM THE CROWN PROSECUTION SERVICE
I have written before the useful guidance given by the Crown Prosecution Guidance on Expert Evidence. Many of the points in that guide apply, with equal force, to instructing experts in civil proceedings. It is worthwhile reading for lawyers and experts…
CLAIMANT NOT ALLOWED TO AMEND CLAIM, OR INTRODUCE NEW EXPERT, WHERE APPLICATION TO ADJOURN BECAUSE OF COVID ALLOWED
In Ludlow -v- Buckinghamshire Healthcare NHS Trust & BMI Healthcare Ltd [2020] EWHC 1720 (QB) Mr Justice Jay allowed an application for an adjournment on the grounds that a trial could not take place remotely. However, he refused the claimant’s…
THE EXPERT THAT DOESN’T GIVE HIS SOURCES (EXCEPT WIKIPEDIA): A PRACTICE DEPRECATED BY THE COURT.
In Engie Fabricom (UK) Ltd v MW High Tech Projects UK Ltd [2020] EWHC 1626 (TCC) Mrs Justice O’Farrell commented on the practice of one of the experts in the case. Failure to follow the basic guidance given in the…
PROVING THINGS 177: WHEN YOU ARE RELYING ON A MEDICAL EXPERT ON CAUSATION WHO “SHOOTS FROM THE HIP” (IT DOESN’T END WELL)
I have written many times about issues arising from expert witnesses. In clinical negligence cases the role of the expert witness is often paramount. The claimant, in particular, is almost wholly reliant on expert evidence in relation to causation. It…
AN EXPERT WITH A CONFLICT OF INTEREST: SHOULD NEVER HAVE BEEN INSTRUCTED
I am giving a webinar on the 29th June 2020 on the Perils and Pitfalls of Expert Evidence. I have not found that there is any shortage of material. That material is added to in the judgment of Mr Justice…
LIFE EXPECTANCY IS RARELY A SIMPLE MATTER OF STATISTICS: APPLYING FOR A “VARIATION” OF DIRECTIONS: YOU SHOULD HAVE APPEALED
In the judgment this morning in Chaplin v Ben Pistol Allianz Insurance Plc [2020] EWHC 1543 (QB) Jay J rejected an application by the defendant to rely on expert evidence in relation to life expectancy. This judgment is important…
EXPERT EVIDENCE: THE PERILS AND THE PITFALLS: WEBINAR 29th JUNE 2020
The problems that experts can cause in cases (often to the side that instructed them) have been extensively catalogued on this blog over the years. On the 29th June I am giving a webinar on the perils and pitfalls of…
![JUST BECAUSE YOU GIVE EXPERT EVIDENCE THAT DOESN'T MAKE YOU AN EXPERT: "ONE OF THE MOST EGREGIOUS AND NAKED USURPATION[S] OF THE FUNCTIONS OF THE COURT THAT I HAVE EVER SEEN"](https://i0.wp.com/www.civillitigationbrief.com/wp-content/uploads/2020/06/calculator_count_statistics_1277492.jpg?resize=150%2C150&ssl=1)
JUST BECAUSE YOU GIVE EXPERT EVIDENCE THAT DOESN’T MAKE YOU AN EXPERT: “ONE OF THE MOST EGREGIOUS AND NAKED USURPATION[S] OF THE FUNCTIONS OF THE COURT THAT I HAVE EVER SEEN”
Last week the “Covid Repeats” posts on this blog highlighted a few (and just a few) of the cases where judges had been critical of the role of experts, or experts involved in cases has been problematic. That this remains…
RELIEF FROM SANCTIONS SHOULD NOT HAVE BEEN GRANTED: CPR 3.9 PROPERLY APPLIED IS ARTICLE 6 COMPLIANT
The previous two posts on this blog have been warning against complacency in relation to the Denton principles. This is the third in that series. In Magee v Willmott [2020] EWHC 1378 (QB) Mrs Justice Yip allowed an appeal in…
NON-COMPLIANCE WITH ORDER FOR EXPERT EVIDENCE AND THE CLAIMANT’S APPLICATION GOES UP IN SMOKE…
Possibly the most difficult position you could put yourself in in litigation is for the court to make an order, do something the court did not allow, not get permission in advance, and then seek relief from sanctions thereafter. …
COVID REPEATS 37: CROSS-EXAMINING EXPERT WITNESSES: HINTS, TIPS AND LINKS
The impartiality, or otherwise, of expert witness witnesses was in the news in June 2014. Since expert evidence has been a constant theme on this blog. This would seem an appropriate time to revisit a post about the cross-examination of…
COVID REPEATS 36: DEFENDANT’S EXPERT TOLD TO GET ON HIS BIKE: WHEN A PARTY “WISELY” PLACES NO RELIANCE ON THEIR OWN EXPERT IN CLOSING SUBMISSIONS
Today we are looking again at the judgment of Mrs Justice Cox in Sinclair -v- Joyner [2015] EWHC Civ 1800 (QB). Some important observations about the role of the expert and the conduct of the expert instructed by the defendant…
COVID REPEATS 35: EXPERTS: DECLARATIONS OF TRUTH SIGNED RECKLESSLY
Problems with experts are very similar across all jurisdictions. The case of Pabon, R v [2018] EWCA Crim 420 is an illuminating one. A decision of the Court of Appeal Criminal Division it shows the dangers when an expert does not comply…
COVID REPEATS 34: EXPERTS, YACHTS AND THAT SINKING FEELING WHEN A CLAIMANT COMES TO GRIEF
Today we are looking back at the case of Hirtenstein -v- Hill Dickinson LLP [2014] EWHC 2711 (Comm) contains many interesting lessons for those involved in professional negligence litigation in particular. Here I just want to concentrate upon two:…
COVID REPEATS 33: YOU’LL NEVER GET TYRED OF THIS: AN EXPERT REPORT THAT WAS “EXTRAORDINARY IN ITS PRESENTATION AND SHOT THROUGH WITH BREATH TAKING ARROGANCE”:
This is “experts” week for our stroll back through various posts on this blog. In September 2017 barrister Brian McCluggage for sent me a copy of the decision of Her Honour Judge Belcher in Hatfield -v- Drax Power Ltd (18/08/2017) which…
COVID REPEATS 32: EXPERTS: SEEING THE WOOD FOR THE TREES: THE EXPERT THAT DIDN’T BOUGH DOWN TO THE RULES…
This week, providing there are no major developments that draw us elsewhere, the repeats are going to be about cases relating to experts. Firstly we go back to 2014 the judgment of Mr Justice Coulson in Stagecoach Great Western Trains -v- Hind…
EXPERTS NOT FOLLOWING THE RULES: DEPLETES YOUR ENERGY: A HIGH COURT CASE
The “Covid Repeats” section of this blog next week will review cases relating to experts. Problems with experts remain a key issue in litigation. Primarily caused by the expert’s failure to follow the basic rules and court orders. Examples can…
THE COVERT RECORDING OF AN EXPERT’S EXAMINATION – THE SEQUEL: DEFENDANT GIVEN PERMISSION TO OBTAIN NEW EXPERT
In October last year I wrote about the case of Mustard v Flower & Ors [2019] EWHC 2623 (QB). The claimant recorded her consultation with the defendant’s medical expert and was given permission to produce these in evidence. That case has…
EXPERTS CAN’T BE ADVOCATES: IT IS AS SIMPLE AS THAT
There are some interesting observations about the role of the expert made by Judge Asif Malek in Neil Picklessharon Pickles v Revenue & Customs (Whether crediting a directors’ loan account which was freely available for the directors/members to draw upon…
THE EXPERT’S DUTY TO GIVE A RANGE OF OPINION: A DECISION NOT TO DO SO “BORDERING ON ARROGANCE”
Experts have a mandatory duty under the rules to give a range of opinion for their advices. I am grateful to Gary Smith from Prince Evans & Co for sending me a copy of the judgment of HHJ Belcher in…
DIVISIONAL COURT FINDS THAT EXPERT IN CONTEMPT OF COURT SHOULD HAVE BEEN ERASED FROM MEDICAL REGISTER: “NEW” EVIDENCE ADMITTED
The judgment of the Divisional Court today in General Medical Council & Ors v Zafar [2020] EWHC 846 (Admin) provides an interesting sequel to the earlier judgments in relation to contempt of court by a doctor who had been seriously…
MEDICAL EXAMINATIONS: MEDCO ALLOW REMOTE EXAMINATIONS
Last week Medco issued a ban on remote video medical examinations. Today it has changed its mind, in an announcement available here. THE ANNOUNCEMENT REMOTE EXAMINATIONS With immediate effect and until further notice the ban on remote video medical…
EXPERT’S CONDUCT DID NOT LEAD TO EVIDENCE BEING DISALLOWED: CLAIMANT’S CASE REMAINS ON TRACK
In Blackpool Borough Council v Volkerfitzpatrick Ltd and Range Roofing and Cladding Ltd & Ors [2020] EWHC 387 (TCC) HHJ Davies (sitting as a High Court judge) carried out a detailed consideration of the conduct of an expert when considering,…
EXPERT WITNESSES: HANDING THE JUDGE AN UNSORTED MEDLEY OF DOCUMENTS MAY NOT GO DOWN TOO WELL
There was one aspect of the evidence mentioned in the judgment Morrow v Shrewsbury Rugby Union Football Club Ltd [2020] EWHC 379 (QB) Mrs Justice Farbey that was somewhat unusual. An expert handed the judge a “file of documents” to…
CLAIMANT’S MEDICAL EXPERT ORDERED TO PAY DEFENDANT’S COSTS: EXPERTS PLEASE NOTE (EXPERTS’ INSURERS NOTE CAREFULLY)
In Thimmaya -v- Lancashire NHS Foundation Trust (30th January 2020, Manchester County Court) HHJ Claire Evans ordered that a medical expert pay a significant part of the defendant’s costs when she found that the expert had failed in his duties…
STAYING SANE AS A LITIGATOR 9: SHARING THE “PAIN”
Most of the burden of complying with time periods and court orders lies with the solicitor. However a solicitor’s life can be made easier by making sure that all those concerned with the litigation process know of the deadlines involved…
CIVIL PROCEDURE BACK TO BASICS 77: THE COURT MUST KNOW HOW MUCH AN EXPERT WILL COST: CPR 35.4(2)
CPR 35.4(2) is often overlooked. This rule imposes a duty on a party applying for permission to rely on expert evidence to inform the court how much the expert is likely to cost. This is often clear at the costs…
2019 AND CIVIL PROCEDURE – A ROUND UP OF THE ROUND UPS: WHAT TO FRET ABOUT AND WHAT NOT TO FRET ABOUT…
There have been a series of annual reviews on key topics throughout December. To round off the year it seemed a good idea to provide a reminder of them all and put the links in one place 2019 AND CIVIL…
CIVIL LITIGATION CASE OF THE YEAR: BATES -v- THE POST OFFICE: LITIGATING IN THE FACE OF “INSTITUTIONAL PARANOIA”
There was never any doubt in my mind as to the civil litigation case of the year – Bates -v- The Post Office. All civil litigation is here, witness and expert evidence, allegations of bias, disclosure and much more. One…
2019 AND CIVIL PROCEDURE, THE YEAR IN REVIEW (6): WHY WE STILL FRET OVER EXPERTS …
It is no surprise that there are numerous posts on experts this year. 26 years after the blast from the courts on the role of experts in the Ikerian Reefer [1993] 2 Lloyds Reports 68 there are still regular reports…
You must be logged in to post a comment.