EXPERT WATCH 2: THE EXPERT WHO REPORTED WITHOUT ALL THE RELEVANT EVIDENCE TO HAND AND THEN WOULD NOT RECOGNISE HE HAD MADE A MISTAKE
Here we look at a case where an expert reported without having all the relevant evidence to hand. In fact he only saw the claimant’s witness statements a few days before the trial. This, added to other issues, led to…
EXPERT WATCH 1: THE DUTY TO STATE THE SOURCES OF THE EXPERT’S INFORMATION
This is the start of a series examining cases where expert evidence is considered by the courts. As matters stand there are already dozens of posts on this site where the conduct of experts has been considered (and often criticised)…
WHEN A PARTY RELIES ON “NON PART 35 COMPLIANT” EXPERT REPORTS: THIS IS HARDLY LIKELY TO CARRY MUCH WEIGHT…
The first question the lawyer must ask when being presented with a report for use in proceeding is – is this report CPR 35 compliant? If it is not then it may have little, if any value. There is a…
THE RULES AND GUIDANCE RELATING TO NON-PARTY DISCLOSURE CONSIDERED AND APPLIED: “THE EXCEPTION RATHER THAN THE RULE”
We are returning to the issue of non-party disclosure, indeed to the same case as the previous post. That post highlighted the Master’s concerns about the way in which claimant’s application had been conducted. The same judgment also contains a…
WHEN A PARTY MAKES A SECOND APPLICATION TO RELY ON EXPERT WITNESS HOW SHOULD THE COURT RESPOND? THE SAGA CONTINUED
We are looking at this case for the third time. There were issues in relation to witness evidence and expert evidence. The problems continued after trial when the judge realised that neither party had addressed her on a mandatory requirement…
IF YOU ARE GOING TO CRITICISE AN EXPERT THIS MUCH YOU SHOULD HAVE RAISED IT AT THE CASE MANAGEMENT HEARING: HIGH COURT REJECTS EACH PARTY’S ATTACKS ON OPPONENT’S EXPERTS
We have seen plenty of cases where the courts have not been slow in their criticism of expert witnesses. Here we have a different situation where the judge was critical of the attacks, by each party, on the credibility of…
HOW FAR IS A TRIAL JUDGE BOUND TO FOLLOW THE VIEWS OF A JOINTLY INSTRUCTED EXPERT? WELL – READ THIS FOR SOME TRENCHANT VIEWS…
When the parties jointly instruct an expert how far is the judge “bound” by the views that the expert reaches? This is an issue we are looking at for the second time within 6 days. We have an interesting consideration…
HEARINGS WHEN WITNESSES GIVE EVIDENCE FROM ABROAD: SOME POINTS FOR PRACTITIONERS (AND JUDGES) TO WATCH: “IT WOULD ASSIST THE LOWER COURTS IF FORMAL CLARIFICATION IS GIVEN ADDRESSING THAT TENSION HEAD ON”
There have been a number of cases where litigants have run into difficulties because they have not complied with the requirements for witnesses who give evidence remotely from abroad. We see an example of this case where there a conflict…
WHEN THE JOINTLY INSTRUCTED EXPERT REPORT IS OF “LITTLE OR NO” ASSISTANCE TO THE COURT: A CASE IN POINT
The courts encourages the use of jointly instructed experts However this does not mean that the case, or even key issues in the case, are necessarily determined by those experts. Here we have a case where the judge held that…
WHICH EXPERT WITNESS IS GOING TO BE PREFERRED? ONE EXPERT TOOK AN “UNREALISTIC APPROACH”
Knowing the reasons why a judge may prefer the evidence of one expert over another is an important part of a litigator’s skill. Each case is, of course, fact specific, but there are clear trends that can be discerned. Here…
SHOULD A PARTY BE ABLE TO INSTRUCT THEIR OWN EXPERT WHEN THEY DISAGREE WITH THE REPORT OF A JOINTLY INSTRUCTED EXPERT? THE ISSUES CONSIDERED
Here we are looking at a case where a party, dissatisfied with the approach of a jointly instructed expert, applied to the court for permission to instruct their own expert. The judgment contains a useful summary of the relevant principles….
FATAL ACCIDENT LAW AND PRACTICE: SEVEN WEBINARS TO HELP YOU UNDERSTAND LAW, PROCEDURE AND PRACTICE
Fatal accidents claims are often some of the most challenging areas for the litigator. Claims have to be investigated (and defended) with great care and sensitivity. To add to the difficulties the law relating to damages is almost wholly based…
PART 35 QUESTIONS TO EXPERTS A POINT ABOUT THE CASE LAW: HOW FAR CAN THE QUESTIONS GO? A CLOSE LOOK AT THE COURT OF APPEAL DECISION IN MUTCH
The previous post about when experts should be called to give evidence also contained a consideration of the nature of questions that can be put to experts. One of my colleagues has suggested that the summary relating to the questioning…
WHEN SHOULD PARTIES BE ALLOWED TO CALL EXPERT WITNESSES TO GIVE EVIDENCE AT TRIAL? THE ISSUES CONSIDERED (IN THE FAMILY COURT)
When should the courts permit experts to give evidence at trial? There are few cases on this topic and today we are looking at a decision in the family courts. The case is relevant to civil practitioners in that it…
YOU SPENT £1.2 MILLION ON EXPERTS AND IT WAS MAINLY MONEY DOWN THE DRAIN: DEFENDANTS ALLOWED TO RECOVER 20% OF FEES INCURRED
Sometimes you have to go looking for a pun as a headline for a blog post. Often they simply write themselves. In a case involving water companies who spent £1.2 million on experts, this was one of these cases. The…
PERIODICAL PAYMENTS AND PROVISIONAL DAMAGES 2025: WEBINAR 4th JUNE 2025
This webinar looks at recent cases in relation to periodical payments and periodical payments, including an interesting negligence case brought against solicitors who failed to claim provisional damages. Booking details are available here. It then looks at the…
EXPERTS IN COURT: “TRESPASSING ON THE JUDICIAL FUNCTION” AND “SEEKING TO ADVOCATE” ON BEHALF OF PARTY: THIS RARELY ENDS WELL…
There is no shortage of posts on this blogs where judges are critical of expert witnesses. Today we look at another such case where the judge found the expert’s approach “concerning” and went on to state that the expert was…
THE IMPORTANCE OF CONTEMPORANEOUS ATTENDANCE NOTES EXAMINED IN THE COURT OF APPEAL (BUT A DIFFERENT DIVISION TO THE ONE WE USUALLY LOOK AT)
Today we are taking a rare trip into the criminal courts, the Court of Appeal Criminal Division. However we are looking at an issue that affects most, if not all, lawyers. A client can attempt to blame their lawyer for…
AVOIDING UNDERSETTLEMENT: PROTECTING THE CLIENT AND PROTECTING YOURSELF: WEBINAR 29th MAY 2025
“We go back through your claim in fine detail and if we find that your previous solicitor wasn’t thorough enough and your claim was mishandled, we’ll squeeze out all the compensation that you’re entitled to, getting you more money, and…
PERSONAL INJURY POINTS 4: THE EMPLOYER WAS IN BREACH OF DUTY WHEN EMPLOYEE WAS INJURED CROSSING THE ROAD
Last week we looked at a case where someone was injured in their workplace, but there was no breach. Today we are looking a case where an employee was injured crossing the road and it was held that the employer…
CIVIL PROCEDURE BACK TO BASICS 101: HOW NOT TO WRITE A LEGAL LETTER : DIMISSING CRUCIAL POINTS AS “COSMETIC” ERRORS LEADS TO REFERRAL TO THE SRA
There has not been a post in this series for some time. There was one case last week that made me decide to restart the series. It is not difficult to guess which case caused me concern. …
THE COURT DOES NOT REQUIRE EXPERT EVIDENCE TO CONSTRUE A TERM IN AN AGREEMENT: AN EXPERT CANNOT BE USED TO USURP THE FUNCTION OF THE COURT
Is an expert needed to construe a contractual agreement. Here we have a case where the Master was very much against the applicant who sought permission to rely on an expert. An expert was not needed to report on market…
EXPERT EVIDENCE AND THE RISKS OF “ANCHORING”: THE EXPERT “GAVE THE SENSE OF TRYING TO ARGUE THE CLAIMANT’S CASE”
Today we are looking at a case where the judge had considerable reservations about expert evidence called on behalf of a claimant. Not all the problems that occurred were the fault of the expert. However she was the third expert…
THE ROLE OF LEADING COUNSEL IN RELATION TO EXPERT REPORTS AND WITNESS STATEMENTS: A CLIENT CAN PAY FOR WHAT THEY WANT, BUT THESE COSTS WILL NOT BE RECOVERABLE INTER PARTES
How far should leading counsel, or counsel generally, be involved in the preparation of expert reports and witness statements? One obvious reply is “not at all”, given that the evidence should come from the expert or witness. These issues were…
NEW EDITION OF THE KINGS BENCH GUIDE: THE GENERAL CHANGES AND THE GUIDANCE ON ANONYMITY ORDERS
There is a new edition of the King’s Bench Guide. There are some additions and changes. In particular the Guide notes the difference between an application for an anonymity order made at an approval hearing and one that is not….
THE RICS PRACTICE ALERT ON ACTING AS AN EXPERT WITNESS IN HOUSING DISREPAIR AND OTHER HIGH VOLUME CASES: OF INTEREST TO ALL EXPERTS (AND THOSE WHO INSTRUCT THEM)
The RICS has produced a Practice Alert aimed specifically at those acting as expert witnesses in housing disrepair and other high volume cases. It some ways the Alert is surprising in that it says nothing new, that is most of…
DEALING WITH THE COUNTER-SCHEDULE AND THE DEFENDANT’S ARGUMENTS IN RELATION TO DAMAGES: WEBINAR 7th MAY 2025
Much of the task of the claimant lawyer concentrates on the task of building up the claim for damages to ensure proper compensation. However it is essential that the lawyer if fully aware of the arguments, case law and principles…
£1 MILLION CASE AUTOMATICALLY STRUCK OUT: RELIEF FROM SANCTIONS REFUSED: THE FACT THAT THIS WAS A “ROGUE SOLICITOR” WAS NOT A STRONG ARGUMENT IN FAVOUR OF REINSTATEMENT
The judgment of HHJ Hassall in Mr Martyn Ian Haynes v Total Plant Hire Limited is available as a link on an article in the Law Society Gazette, available here. The case involves a detailed consideration of the Denton criteria. In particular some of the arguments on…
RECENT CASES ON LOSS OF EARNINGS: WHAT CAN WE LEARN FROM THEM? WEBINAR 23rd APRIL 2025
Practitioners can learn a lot from looking at judgments on claims for loss of earnings. These provide a practical grounding of how the courts approach such claims and, in particular, how judges consider the evidence (or absence of evidence) in…
EXPERT REPORTS AND CONDUCT CONSIDERED IN THE COURTS AGAIN: LEADS TO A DOCTOR BEING ERASED FROM THE REGISTER OF DOCTORS
The judgment in Moodliar v General Medical Council [2025] EWHC 913 (Admin) provides a salutary reminder to medical experts that giving expert evidence is a highly significant task. Failures in the process can lead to erasure from the medical register,…
PROVING THINGS 260: COURT OF APPEAL JUDGMENT ON ADVERSE INFERENCES: “WE REJECT THIS NEW WAY OF PUTTING THE ADVERSE INFERENCE CASE”
I am grateful to David Platt KC for drawing my attention to the Court of Appeal decision in Alexander Johnstone v Fawcett’s Garage (Newbury) Limited [2025] EWCA Civ 467, in particular to the judgment in relation to adverse inferences. The Court of…
THE JUDGE SHOULD NOT HAVE OVERRIDDEN THE EVIDENCE OF THE (UNCHALLENGED) EXPERT WITNESS: CLAIMANT WAS ENTITLED TO DAMAGES FOR PSYCHIATRIC INJURY
In Sarah Jane Young v John Anthony Downey [2025] EWCA Civ 177 the Court of Appeal sent out another reminder that there are difficulties in trial judges attempting to override the views of expert witnesses. “… in the circumstances…
EXPERT EVIDENCE FOR HOUSING LAWYERS: WEBINAR 14th MAY 2025
I am giving a webinar for the Steve Cornforth Consultance on the 14th May 2025. It is aimed at housing lawyers and aims to have a comprehensive look at the rules, guidance and cases on the use of experts in…
APPLICATION TO ADDUCE “EXPERT EVIDENCE” FROM THE CLAIMANT’S SON WAS REFUSED: THIS IS NOT AN EXPERT REPORT, IT IS NOT COMPLIANT, NOT IMPARTIAL AND NOT ADMISSIBLE…
We are returning to the judgment of Jason Beer KC Rajan Marwaha v Director of Border Revenue & Anor [2025] EWHC 869 (KB) Jason Beer KC and staying with the issue of “expert” evidence. This time looking at the attempt of…
PROVING THINGS 259: WHEN THE COURT REFUSES PERMISSION FOR THE EXPERTS TO GIVE EVIDENCE AT TRIAL: THESE ARE BASICALLY ISSUES OF FACT
In Rajan Marwaha v Director of Border Revenue & Anor [2025] EWHC 869 (KB) Jason Beer KC dismissed the claimant’s application that forensic accountants give evidence at trial. The experts had basically agreed that there were issues of fact to…
SPORTING INJURIES IN THE COURTS: WEBINAR 17TH APRIL 2025: SOME INTERESTING TOPICS TO TACKLE…
Injuries to those involved in sports are not unusual. The issues relating to whether injuries are the result of negligence are complex ones. This webinar looks at the law relating to sporting injuries and, importantly, at the practical issues that…
ACCOMMODATION AND APPLIANCE CLAIMS: THE CASES SINCE SWIFT -v- CARPENTER: WEBINAR 15th APRIL 2025
Issues relating to accommodation costs and aids and appliances feature in many moderate to serious personal injury cases. There are relatively few cases where the principles governing damages are considered. This webinar looks at the principles and the practical steps…
EXPERT EVIDENCE: THIS IS JUST ABOUT AS BAD AS IT GETS: EXPERT CONCEDES THAT PARTS OF THEIR EVIDENCE WAS “APPALLING”: ONE OF THE PARTIES DESCRIBED IT AS “TERRIFYING”
In LB Croydon v D (Critical Scrutiny of the Paedeatric Overview) [2024] EWFC 438 HHJ Kathryn Major (sitting as a Deputy High Court Judge) was severely critical of the medical evidence called by the local authority. That part of the…
PROVING THINGS TWO 257: TWO (PRESUMABLY VERY EXPENSIVE EXPERTS) ON LOSS AND THEY ARE BOTH OF NO HELP TO THE COURT:
In H&P Advisory Limited v Barrick Gold (Holdings) Limited (formerly Randgold Resources Limited) [2025] EWHC 562 (Ch) Mr Simon Gleeson found that the experts for each party were of no assistance in assessing the value of the work done by…
THE CURRENT IMPORTANCE OF PLEADINGS 3: EXPERT EVIDENCE WAS NOT NECESSARY, NOT PROPORTIONATE AND DID NOT REALLY RELATE TO THE PLEADED ISSUES
There is a consideration of the principles relating to the use of expert evidence in the judgment of Mr Justice Fancourt in Cohen & Ors v Co-operative Group Ltd & Ors [2025] EWHC 526 (Ch). The judge rejected the claimants’…
SERIES OF 10 WEBINARS ON PERSONAL INJURY DAMAGES: AND YOU CAN BUY A “SEASON TICKET”
The APIL Damages Series is 10 webinars looking at key elements of law and practice relating to personal injury damages. The webinars can be bought and watched individually. APIL has a special offer for all 10, details available here. …
“THIS IS AN UNUSUAL PROBATE CLAIM IN THAT THE DECEASED SAYS SHE IS VERY MUCH ALIVE”: A CHAOTIC TRIAL WHERE NO-ONE SEEMS TO HAVE THE SAME PAGINATION IN THE BUNDLES: AND THATS NOT EVEN HALF OF THE PROBLEMS…
The past few weeks have led to a number of cases about bundles. My working theory about trial and application bundles is that problematic bundles often reflect a much deeper malaise in the case itself. Support for that theory can…
PROVING THINGS 256: CLAIMANT FAILS TO ESTABLISH LIABILITY AFTER FALLING FROM A HORSE: THE ANIMALS ACT CONSIDERED
This blog has looked at the judgment in Boyd v Hughes [2025] EWHC 435 (KB) several times in relation to procedural issues and assertions of dishonesty. However the case, ultimately, was about a claimant who was injured when she fell…
AVOIDING PROBLEMS WITH EXPERT WITNESSES: WEBINAR 6th MARCH 2025: DEALS WITH SOME “INTERESTING” ISSUES: EXPERTS BEHAVING BADLY
This webinar deals, among other things, with three cases where solicitors have been struck off the Roll because of their conduct with expert witnesses. In one of those cases the solicitor also went to prison. The Court of Appeal held…
SENSIBLE STEPS TO TAKE WHEN THERE IS NO TRANSCRIPT OF A HEARING AVAILABLE
A very short passage in the judgment of Mr Justice Fancourt in Odhavji v Tighe & Ors [2025] EWHC 372 (Ch) sets out the steps a prudent party should take when a transcript (and sometimes a judgment) cannot be obtained. …
EXPERTS AT TRIAL: THE JUDGE PREFERS THE EXPERT WITH DIRECT PRACTICAL EXPERIENCE OF THE ISSUE BEING CONSIDERED
In Dobson v Chief Constable of Leicestershire Police [2025] EWHC 272 (KB) HHJ Bird (sitting as a High Court Judge) considered which expert should be accepted in the context of a case against the police. He preferred the expert with…
WHOSE EXPERT EVIDENCE IS GOING TO BE ACCEPTED AT TRIAL (CLINICAL NEGLIGENCE): WEBINAR 14th FEBRUARY 2025
Expert evidence plays a critical, often decisive, role in clinical negligence litigation. An ability to assess expert evidence is a key part of the litigator’s role. This webinar looks at the rules and cases that govern the credibility of expert…
CAN AN EXPERT WORK ON A CONDITIONAL FEE BASIS? IT MAY BE POSSIBLE – BUT IS DEFINITELY NOT WISE
I am grateful to Professor Keith Rix for allowing me to use an article that appears in February’s Expert Healthcare Witness Matters*. This deals with the question of whether an expert can, or should, agree to act on a conditional…
WHOSE EXPERT EVIDENCE IS GOING TO BE ACCEPTED AT TRIAL (?) PERSONAL INJURY: WEBINAR 7th FEBRUARY 2025
This blog regularly features cases where there have been issues, sometimes major problems, with expert evidence. This webinar takes a close look at the factors that the courts take into account when considering which expert’s view should be accepted. It…
WHEN EXPERT EVIDENCE GOES WRONG : THE IMPORTANCE OF ACCURATE INFORMATION BEING GIVEN TO THE EXPERT
We have looked at the judgment in Aviva Insurance Ltd v Nadeem & Anor [2024] EWHC 3445 (KB) HHJ Tindal (sitting as Judge of the High Court) before, in the context of the failure of committal proceedings following an earlier finding…
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