EXPERT WATCH 56: A SECTION OF A JUDGMENT THAT SPECIFICALLY CRITICISES A MEDICAL EXPERT: “I WAS STRUCK BY THE ABSENCE OF A RIGOROUS AND CAREFUL MULTIDISCPLINARY APPROACH TO THIS ISSUES IN THIS CASE”
One of the fascinating things about procedure is how the same principles apply across a whole range of cases. This is particularly the case with issues relating to evidence, particularly expert evidence. Earlier we looked at expert evidence in relation…
EXPERT WATCH 55: WAS THIS WAR? (OR CAUSED BY WAR): TRIAL JUDGE CONSIDERS THE EVIDENCE OF TWO EXPERTS ON GEOPOLITICS, BUT FINDS ONE IS PARTISAN
It is never helpful to a party’s case when a judge comes to the conclusion that the expert they have instructed is partisan. We have an example of this in this extremely high value case. There is interesting commentary on…
EXPERT WATCH 54 : THE DEPUTY MASTER SHOULD NOT HAVE IGNORED THE EXPERT EVIDENCE BEFORE THE COURT: IT WAS RELEVANT AND ADDRESSED THE CENTRAL ISSUE
We are looking at a case where, on appeal, the judge found that a Deputy Master fell into error by failing to take into account relevant expert evidence provided by a claimant. The judge held that the Master had misunderstood…
EXPERT WATCH 53 (THAT CLINICAL NEGLIGENCE CASE AGAIN): THE DEFENDANT’S EXPERTS MADE MISTAKES AND THEN “GAVE AN IMPRESSION OF LOFTINESS” : THE JUDGE FELT UNABLE TO RELY ON THEIR CONCLUSIONS
Here we have an example of a judge clearly rejecting the expert evidence adduced on behalf of a defendant and giving clear grounds for the criticism of them. This was in the context of a case where the defendant had…
EXPERT WATCH 52: A REMINDER THAT THE JUDGE REMAINS THE SOLE FINDER OF FACT: (HOWEVER THIS A CASE WHERE THE JUDGE IS HIGHLY COMPLIMENTARY ABOUT SOME OF THE EXPERTS)
Here we look at the judge’s comments on expert evidence arising from a complex case in the Commercial Court. The judgment provides a reminder that experts should not be instructed to comment on matters of fact which are the sole…
AN APPLICATION TO SET A DEFAULT JUDGMENT ASIDE (1): THE EVIDENCE AS TO THE MERITS: THE JUDGE SHOULD NOT HAVE CONDUCTED A “MINI TRIAL”
A defendant applying to set aside a properly obtained default judgment has a number of hurdles to clear. The court will consider the “merits” of the proposed defence, the reason for the delay, “promptness” and then go on to consider…
EXPERT WATCH 51: THE EXPERT VALUERS SHOULD HAVE GONE INTO THIS EXERCISE “BLIND” – THEIR CREDIBILITY WOULD BE “MUCH IMPROVED”
In this case the judge expressly sets out a method of instructing the experts which would have been of more assistance to the court. In essence that the valuation experts should have been instructed, initially, without any knowledge of the…
DEEPFAKES AND THE LAWYER: SOME USEFUL CHECKLISTS AND LINKS: “VERIFICATION SHOULD OCCUR BEFORE EVIDENCE IS DEPLOYED, NOT AFTER AUTHENTICITY IS CHALLENGED…”
The previous post dealt with a case where a participant in a relatively small dispute about shared childcare was found guilty of putting “deepfake” evidence before the courts. This provides a wake up call to us all that our clients,…
DEFENDANT GIVEN PERMISSION TO WITHDRAW FROM ADMISSIONS: THE SOLICITORS CONDUCT WAS A “MATTER OF VERY REAL CONCERN” – BUT THE APPLICATION WAS GRANTED
Applications to withdraw from admissions often give rise to controversy. Here a defendant to a clinical negligence made such an application very late and on the grounds that there had been a change of expert and thus a change of…
THROWBACK FRIDAY: WHEN A CLAIMANT FAILED TO PROVE ANY LOSS AND ATTEMPTED TO USE A LAY WITNESS AS AN EXPERT (JUNE 2018):”THERE IS NO ADMISSIBLE EVIDENCE OF ANY LOSS”
We have seen recent examples of cases where parties have failed to prove that they have suffered any loss. The attempts by lay witnesses to give “expert” evidence is also a recurrent theme in this blog. Here we go back…
THE COURT CAN ORDER SPECIFIC PERFORMANCE AGAINST A RELUCTANT LANDLORD: IF THE DEFENDANT WANTED TO ARGUE THAT THIS WAS NOT FEASIBLE THEN IT SHOULD HAVE ADDUCED EVIDENCE AT THE TRIAL
There is little (if any) point litigating if a claimant is not going to obtain an effective remedy if successful. Here we have a case where the claimant sought (and obtained) an order for specific performance. There are lessons here…
EXPERT WATCH 50: THE EXPERT SHOULD HAVE GIVEN HIS TRUE OPINIONS EARLIER – NOT WAITED UNTIL CROSS-EXAMINATION
Experts faced with evidence that appears to contradict their earlier views often face a dilemma. In particular they need to consider whether their earlier conclusions remain valid. We have an example here where the judge was critical of the expert’s…
EXPERT WATCH 49: EXPERT EVIDENCE IS “UNUSUAL” AT AN INTERLOCUTORY HEARING: “THIS MIXTURE OF OF SUBMISSIONS AND OPINION WAS NOT CPR 35 COMPLIANT EXPERT EVIDENCE”
Here we look at part of a judgment that dealt with expert evidence. The Master was clear that a party could not rely on expert evidence without permission. The use of such evidence is “unusual” in an interlocutory application. Further…
WHOSE EXPERT EVIDENCE IS GOING TO BE ACCEPTED AT TRIAL? (CLINICAL NEGLIGENCE): WEBINAR 10th JUNE 2026
Expert evidence plays a critical and often decisive role in clinical negligence litigation, and the ability to assess such evidence is a core skill for litigators. This webinar examines the legal framework and case law governing the credibility and admissibility…
DO LAWYERS (AND EXPERTS) LIKE CHECKLISTS THAT ENSURE COMPLIANCE WITH THE RULES? WELL, I MAY HAVE A TREAT FOR YOU TOMOPRROW
Checklists are always a feature of discussions I have with publishers and legal professionals. I have prepared have created a whole series of checklists for lawyers (9 in total) and a series for experts (6), plus a “Judicial Red Flags”…
THE APIL FATAL ACCIDENTS WEBINAR SERIES 2026: SEVEN WEBINARS TO HELP NEGOTIATE THIS DIFFICULT AREA OF LAW AND PRACTICE
Fatal accident claims are among the most complex and high-stakes cases a lawyer can handle. They are not simply personal injury claims in which the injured person has died. Fatal accident litigation is governed by a distinct legal framework, involves…
WHOSE EXPERT EVIDENCE IS GOING TO BE ACCEPTED AT TRIAL? PERSONAL INJURY: WEBINAR 3rd JUNE 2026
There is no shortage of posts on this blog where judges have been critical of expert witnesses (and sometimes those who instruct them). This webinar examines how courts assess and evaluate expert evidence in personal injury litigation, with a particular…
AVOIDING THE PITFALLS: BUNDLES, WITNESSES AND PREPARING FOR TRIAL: WEBINAR ON 29th MAY 2026: IT MAY BE A WHOLE BUNDLE OF FUN
In Serra -v- Harvey [2024], wasted costs were ordered on an indemnity basis against the claimant’s solicitors because the lateness and condition of the trial bundles. The bundles were described as “haphazard”. This is just one of numerous posts on…
THE COURT OF APPEAL ALLOWED DEFENDANT TO RELY ON WITNESS STATEMENTS SERVED “LATE”: THE CRUCIAL DISTINCTION BETWEEN “IN TIME” AND “OUT OF TIME” APPLICATIONS TO EXTEND TIME
I am grateful to Barrister Simon Brindle for sending me a copy of the judgment of this Court of Appeal judgment given yesterday. It relates primarily to the major distinction between an application made “ahead” of time and one made…
EXPERT WATCH 47: AN EXPERT CANNOT OMIT MATTERS FROM THEIR REPORT ON THE BASIS THAT THEY COULD EXPLAIN THEM WHEN QUESTIONED: “THIS BELIED A FUNDAMENTAL MISUNDERSTANDING OF THE OBLIGATIONS UPON A CPR COMPLIANT REPORT”
Here we have a very short post on a very significant matter. That is the circumstances in which an expert can miss out the limitations of the data in their report on the basis that they could explain this when…
THROWBACK FRIDAY: LAWYERS FAILURE TO PROVIDE OVERSIGHT OF EXPERTS LEADS TO EXCLUSION OF THEIR EVIDENCE: EXPERT EVIDENCE IS “NOT A MATTER OF RIGHT” (MAY 2021)
When looking at previous posts we are looking for issues that remain relevant today. This case, about the conduct of experts and their interaction with lawyers, remains highly pertinent. The judge held that the breaches were so severe that the…
WHEN A CASE – WEEKS AWAY FROM TRIAL WAS “UNTENABLE”: HOW DID WE GET HERE?
We don’t normally look at the same case twice in the same day. However this particular judgment needs looking at from different angles. The previous post looked at the case from the point of view of the pleadings. However the…
EXPERT WATCH 46: GUIDANCE AS TO THE INSTRUCTION OF EXPERTS IN THE COURT OF PROTECTION: (BUT SOMETHING FOR ALL OF US TO TAKE AWAY…)
The guidance given in this case is obviously of interest to those who practice in the Court of Protection (as practitioner or expert). However some of the points made here are of general interest. In particular in relation to the…
BACK TO BASICS MONDAY: WHEN YOU ARE SEEKING PERMISSION TO RELY ON EXPERT EVIDENCE THE COURT HAS TO KNOW HOW MUCH IT WILL ALL COST…
Here we are looking at a basic requirement that is often overlooked. When a party is applying for permission to rely on expert evidence there is a mandatory obligation to provide the court with an estimate of costs. THE…
PROVING THINGS 288: HOW SHOULD A COURT CONSIDER A CLAIM FOR LOSS OF EARNINGS WHEN THE CLAIMANT IS STILL IN EMPLOYMENT? SMITH -v- MANCHESTER APPROACH PREVAILS
No sooner was the (metaphorical) ink dry on the previous post about loss of earnings when I received a useful case from David Platt KC. It is a judgment that contains much of interest to litigators (that we will return…
EXPERT WATCH 44: THE JUDGE PREFERS THE EVIDENCE OF ONE EXPERT OVER ANOTHER: IT IS AS SIMPLE AS THAT…
Here we have a case where success for the claimant rested almost wholly on their expert evidence being accepted. This is not altogether unusual for a clinical negligence case. What is notable about this case is that the treating doctor…
EXPERT WATCH 43: WHEN AN EXPERT DOESN’T HAVE “REAL WORLD” EXPERIENCE OF THE MATTERS IN THEIR REPORT – THEY START ON THE BACK FOOT…
The previous post on costs and mediation led to me to look at the initial judgment on liability. This is because the court considered an argument that the situation with the claimant’s expert was so poor as to warrant indemnity…
“GUIDE, MENTOR AND FRIEND”: REVIEW OF THE APIL GUIDE TO CATASTROPHIC INJURY CLAIMS 4th EDITION: STUART McKECHNIE KC (AND A FORMIDABLE TEAM): THE “LITTLE GEM” THAT KEEPS ON GIVING
The fundamental question for a reviewer of a legal text is – is this book worthwhile? Here there is only one answer. A book of considerable importance, assistance and utility is a “must buy”. HOW DO I SUMMARISE THIS? Sir…
AN “EXTERNAL” REPORT IS RELEVANT TO THE ISSUES IN THE CASE BUT THE JUDGE WILL DETERMINE ALL KEY MATTERS THEMSELVES..
We have, for many years now, been looking at the way in which the courts consider the admissibility of reports prepared for related purposes. We have that issue considered in this case. A report was obtained in relation to allegations…
EXPERT WATCH 42: THIS IS NOT EXPERT EVIDENCE – BUT A SIMPLE STEP UP FROM “NUMBER CRUNCHING” : ALSO OPINION EVIDENCE SHOULD BE DISTINGUISHED FROM FACTUAL EVIDENCE
Here we have a case where the judge found evidence provided by experts to be of “assistance” but where he was clear in his view that the information put forward was not expert evidence. The evidence was “simply a kind…
DECISION TODAY IN RELATION TO RECOVERABILITY AND ASSESSMENT OF FEES CHARGED BY MEDICAL REPORTING ORGANISATIONS: ANOTHER ROUND IN A VERY LONG WAR…
We are looking at another round in the ongoing “costs of medical reporting organisations” series of battles. As the judge anticipated this may well not be the last round. Here I provide a brief summary of the conclusions. A more…
EXPERT WATCH 41: THE COURT OF APPEAL REFUSES TO OVERTURN A DECISION WHERE THE “WRONG” TYPE OF JOINT EXPERT WAS INSTRUCTED
This is an unusual case where, after the event, a party to the litigation argued that the court had relied on the “wrong” type of expert evidence. An educational psychologist had been instructed as a joint expert whereas what was…
CLINICAL NEGLIGENCE CORNER 6: CLAIMANT FAILS TO ESTABLISH CAUSATION: STATISTICAL RISK REDUCTION DOES NOT SATISFY THE BURDEN OF PROOF
Establishing causation is a key element of many clinical negligence cases. Here we have a case where the issue of causation was put in two ways: the “but for” test and alternatively the “indivisible injury” test. The claimant did not…
EXPERT WATCH 40: THE TRIAL JUDGE DID NOT ACCEPT THE EVIDENCE OF THE JOINTLY INSTRUCTED WITNESS: “THE DUTY OF THE COURT IS TO APPLY THE BURDEN OF PROOF AND TO FIND THE FACTS HAVING REGARD TO ALL THE EVIDENCE IN THE CASE…”
This is a case where the judge did not accept the views of a jointly instructed expert as to the authenticity of a document that was central to the case. The expert did not have access to all the relevant…
AVOIDING THE PITFALLS WITH EXPERT EVIDENCE: WEBINAR 20th MARCH 2026: THE EXPERTS REPORT WAS “ALMOST WORSE THAN USELESS…”
We have seen some graphic examples in the past few weeks of a court robustly rejecting expert evidence adduced on behalf of a claimant. This webinar examines why expert evidence is not accepted, limited, or even wholly rejected at trial….
EXPERT WATCH 39: WHEN THE HOME SECRETARY DID NOT CHALLENGE EXPERT EVIDENCE SHE CANNOT BE THAT SURPRISED WHEN THE COURT ACCEPTS IT
We are looking at another case where a party failed to challenge expert evidence. The Court of Appeal was clear in its view that if fault lay anywhere it was with the appellant’s failure to challenge the expert evidence that…
EXPERT WATCH 39: BOTH EXPERTS “ACTED AS SURROGATE ADVOCATES ON BEHALF OF THEIR INSTRUCTING PARTY”: MORE LESSONS TO BE LEARNT…
We have another High Court decision where the judge was highly critical of the approach of each expert. The judge found that each took on the role of advocate rather than expert. The criticisms are stark “they were similar in…
EXPERT WATCH 37: THE COURT SHOULD MAKE FINDINGS OF FACT FIRST AND NOT ABDICATE THIS TASK TO AN EXPERT: A FIRST INSTANCE DECISION WITH A “FUNDAMENTAL FLAW”
We are looking at a family law case which considers several significant aspects of expert evidence. Firstly it makes clear that it is not for an expert to make findings of fact. Further a judge cannot simply abdicate they key…
WITNESS EVIDENCE WEDNESDAY: EXPERT EVIDENCE IN WITNESS STATEMENTS (ALLOWED IN PART): ADVOCACY AND ARGUMENT – HAD TO GO
We are looking at a case where the sole issue the court was considering was the question of whether passages in the witness statements provided by the claimant were admissible. Unusually the Competition Appeal Tribunal allowed parts of the statements…
EXPERT WATCH 36: THE JUDGE FINDS THAT EXPERT EVIDENCE IS “LITERALLY UNBELIEVABLE” (AND IT GETS WORSE…) “I MEAN, IT IS DISHONEST, FULL STOP”
We are used to seeing judicial criticism of experts on this site. We have an example here of a claimant’s case coming to grief because the judge did not accept her evidence or the evidence of the two experts called…
EXPERT WATCH 35: CLAIMANT REFUSED PERMISSION TO ADDUCE A SUPPLEMENTARY REPORT AFTER THE TRIAL HAD ENDED
There are many (if not all) working advocates who have thought, after a hearing is over, “I could have said that”. The same may well be true of experts. Here we have an attempt to introduce new material in a…
THROWBACK FRIDAY: “EXPERTS: THE JOINT REPORT AND THOSE TROUBLESOME “AGENDAS”: FEBRUARY 2018
There have been several major issues about the way in which the joint meetings of experts are conducted. This includes the problems that occur when the parties cannot even agree on an agenda for the meeting. This post looked at…
MEMBER NEWS: A REMINDER OF MEMBER BENEFITS AND WHERE TO FIND THE DISCOUNT CODES: ESSENTIAL TOPICS COVERED IN WEBINARS THROUGHOUT THE YEAR
A reminder that member subscribers have access to discounts on webinars being presented throughout the year. The details of the webinars, the discounts and how to find the discount codes are below. The first webinar sets out the practical consequences…
EXPERT WATCH 34: THE COURT REFUSES TO REPLACE A JOINTLY INSTRUCTED EXPERT BUT ALLOWS SOME OF THE PARTIES TO INSTRUCT THEIR OWN EXPERT
When it is appropriate for a court to replace a jointly instructed expert? That issue was considered in this case. The judge rejected the allegations made about the jointly instructed expert, however given that expert evidence was central to the…
EXPERT WATCH 33: WHEN AN AN EXPERT RELIES ON THE FINDINGS OF A PREVIOUS EXPERT: THIS CAN LEAD TO DIFFICULTIES…
I am grateful to Jim Shepphard solicitor for sending me a copy of this report part of which relates to to the assessment of expert evidence. The claimant’s expert had a problem because their report was based, in part, on…
EXPERT WATCH 32: A REVIEW OF THE CASE LAW AS TO THE INDEPENDENCE (OR OTHERWISE) OF EXPERT WITNESSES
We are looking again at a case looked at yesterday. This is because the judgment contained a useful summary of many leading cases relating to the question of expert bias, or apparent bias. “It is always desirable that an expert…
EXPERT WATCH 31: A PARTY WAS NOT ALLOWED TO RELY ON THE EXPERT EVIDENCE OF SOMEONE WHO WAS CONFLICTED: THE EXPERT CANNOT “MARK THEIR OWN HOMEWORK”
This is an interesting example of a judge refusing a party permission to rely on an expert witness because they were conflicted. They had been involved in the issues previously and could not give independent or disinterested advice. “Ms…
EXPERT WATCH 30 : WHEN THE EXPERTS REPORT ON THE BASIS OF DIFFERENT INFORMATION AND DOCUMENTS: IT WAS APPARENT THAT SOMETHING HADE WRONG WITH THE PROCESS OF OBTAINING EXPERT OPINION EVIDENCE
Here we have problems with the way in which handwriting experts were instructed. The difficulty being that different experts were given different documents. This led to difficulties at trial. However, ultimately, it did not favour the defendants. The judge was…
EXPERT WATCH 29: THE JUDGE IS WARY OF A CLINICAL EXPERT WHO IS “HEAVILY INVOLVED IN THE BUSINESS OF LITIGATION”
There have been a number of cases in recent years where judges have been wary (sometimes highly sceptical) of expert witnesses who make their living solely from being involved in litigation. We have another example here. There is no indication…
REVIEW OF THE YEAR 6: EXPERTS IN THE COURTS IN 2025: CASES ON THIS BLOG
I am surprised (but perhaps shouldn’t be) at the sheer number of cases involving experts that the blog has covered this year. In July I started the “Expert Watch” series to focus on cases about the conduct of experts and…
You must be logged in to post a comment.