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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. 4-5 Gray's Inn Square, London.
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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

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

April 12, 2021 · by gexall · in Case Management, Civil evidence, Expert evidence, Experts

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

EXPERTS, CONFLICTS OF INTEREST AND THE DUTY OF DISCLOSURE: A REVIEW OF THE RULES AND CASES: HOW EXPERTS CAN AVOID HITTING THE NET

April 8, 2021 · by gexall · in Civil evidence, Civil Procedure, Credibility of experts, Expert evidence, Experts

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

EXPERT WITNESSES & CONFLICTS OF INTEREST: HIGH COURT UPHOLDS DECISION TO ERASE DOCTOR FROM RECORD BECAUSE OF HIS CONDUCT AS AN EXPERT WITNESS

March 31, 2021 · by gexall · in Civil evidence, Credibility of experts, Expert evidence, Experts

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…

ADJOURNMENT OF A TRIAL IS A "LAST RESORT" (AND WILL RARELY OCCUR BECAUSE OF INABILITY OF SPECIFIC COUNSEL TO ATTEND)

ADJOURNMENT OF A TRIAL IS A “LAST RESORT” (AND WILL RARELY OCCUR BECAUSE OF INABILITY OF SPECIFIC COUNSEL TO ATTEND)

February 22, 2021 · by gexall · in Adjournments, Applications, Clinical Negligence, Experts

The judgment of Mr Justice Fordham in  Naylor v University Hospitals of Leicester NHS Trust [2021] EWHC 340 (QB) shows the difficulty of obtaining an adjournment of a trial date.    The judge rejected an application on the grounds of…

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

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

February 11, 2021 · by gexall · in Civil evidence, Civil Procedure, Conduct, Costs, Expert evidence, Experts

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

FAILED ATTEMPT TO OBTAIN COSTS FROM A JOINT EXPERT: A LOT TO LEARN HERE

February 11, 2021 · by gexall · in Applications, Expert evidence, Experts, Wasted Costs

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

EXPERTS NOT REALLY NECESSARY WHEN A JUDGE LOOKS AT BALLET SHOES: EVIDENCE SHOULD HAVE BEEN MORE EN POINTE

December 16, 2020 · by gexall · in Case Management, Civil evidence, Expert evidence, Experts

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

JUDGE REFUSES TO RECONSIDER CRITICISMS OF EXPERT WITNESS IN A JUDGMENT: EXPERT DUTIES CANNOT BE DELEGATED

December 7, 2020 · by gexall · in Civil evidence, Expert evidence, Experts

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

EXPERT EVIDENCE NOT ADMITTED: IT WAS NOT NECESSARY AND TOO COSTLY

December 2, 2020 · by gexall · in Applications, Civil evidence, Expert evidence, Experts

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

November 27, 2020 · by gexall · in Civil evidence, Credibility of experts, Expert evidence, Experts, Personal Injury

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

A “LACK OF OBJECTIVITY” IN AN EXPERT’S APPROACH: CLINICAL NEGLIGENCE AND CAUSATION CONSIDERED IN THE HIGH COURT

October 30, 2020 · by gexall · in Clinical Negligence, Credibility of experts, Expert evidence, Experts

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

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

October 27, 2020 · by gexall · in Civil evidence, Conduct, Expert evidence, Experts, Liability, Personal Injury

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

October 27, 2020 · by gexall · in Appeals, Expert evidence, Experts, Personal Injury

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…

DEFENDANT'S CONDUCT OF THE CASE LED TO INDEMNITY COSTS BEING PAID: MAKING ALLEGATIONS OF "NOT ACTING IN GOOD" FAITH: A SPECULATIVE & WEAK CASE: EXPERTS WITH A CONFLICT OF INTEREST

DEFENDANT’S CONDUCT OF THE CASE LED TO INDEMNITY COSTS BEING PAID: MAKING ALLEGATIONS OF “NOT ACTING IN GOOD” FAITH: A SPECULATIVE & WEAK CASE: EXPERTS WITH A CONFLICT OF INTEREST

September 11, 2020 · by gexall · in Conduct, Costs, Experts

This is the third (but not the last) look at the judgment on costs  in Essex County Council v UBB Waste (Essex) Ltd (No. 3) [2020] EWHC 2387. The judge held that the defendant’s conduct of the case was such that…

GUIDANCE ON GIVING REMOTE EVIDENCE: ESSENTIAL READING FROM THE ACADEMY OF EXPERTS

GUIDANCE ON GIVING REMOTE EVIDENCE: ESSENTIAL READING FROM THE ACADEMY OF EXPERTS

September 3, 2020 · by gexall · in Applications, Coronavirus, Expert evidence, Experts, Remote hearings, Useful links

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

THE TREATMENT OF EXPERT EVIDENCE AND APPEALS: ANOTHER CASE WHERE A JUDGMENT IN FAVOUR OF A DEFENDANT IS OVERTURNED

August 30, 2020 · by gexall · in Expert evidence, Experts, Personal Injury

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

EXPERT EVIDENCE UNDER THE MICROSCOPE: THE TRIAL JUDGE CANNOT OVERTURN CONCLUSIONS OF A “UNCONTROVERTED” EXPERT: HIGH COURT DECISION TODAY

August 20, 2020 · by gexall · in Appeals, Civil evidence, Credibility of experts, Expert evidence, Experts, Personal Injury

In Griffiths v TUI UK Ltd [2020] EWHC 2268 (QB)  Mr Justice Martin Spencer considered the question of the approach of the trial judge to “uncontroverted” expert evidence.  He overturned the decision of the trial judge in favour of the…

WHEN EXPERT EVIDENCE BECOMES REDUNDANT:  "WE DO NOT HAVE TRIAL BY EXPERT IN THIS COUNTRY: WE HAVE TRIAL BY JUDGE"

WHEN EXPERT EVIDENCE BECOMES REDUNDANT: “WE DO NOT HAVE TRIAL BY EXPERT IN THIS COUNTRY: WE HAVE TRIAL BY JUDGE”

August 4, 2020 · by gexall · in Case Management, Civil evidence, Expert evidence, Experts, Fatal Accidents

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

CHANGES COMING INTO FORCE IN OCTOBER 1: CHANGES TO THE STATEMENTS GIVEN BY EXPERTS

July 29, 2020 · by gexall · in Civil evidence, Civil Procedure, Expert evidence, Experts, Rule Changes

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

THE INSTRUCTION OF EXPERTS : LOOKING AT GUIDANCE FROM THE CROWN PROSECUTION SERVICE

July 20, 2020 · by gexall · in Expert evidence, Experts, Useful links

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…

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