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…
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…
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…
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…
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…
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…
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…
CIVIL PROCEDURE ROUND UP: BLOG AND ARTICLES ROUND UP: NOVEMBER 2020
This round up covers specific posts and articles in relation to civil procedure from November 2020. COSTS ACL – Lacuna identified in criminal legal aid rules for civil committal proceedings ACL – QOCS does not apply to pre-issue applications, court rules ACL…
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…
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…
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…
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 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…
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…
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…
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, 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…
CIVIL PROCEDURE AND COSTS: BLOG AND ARTICLES ROUND UP – NOVEMBER 2019
Here we have links to blogs and articles about civil procedure and costs from November 2019. COSTS Costs Barrister Blaming others Costs Barrister The undiscovered country Herbert Smith Freehills Court of Appeal confirms jurisdiction to award claimant interim payment on account of costs…
CIVIL PROCEDURE BACK TO BASICS 72: THE EXPERT’S DUTY TO LOOK AT BOTH SIDES OF THE ISSUE AND GIVE REASONS FOR THEIR VIEWS (A MANDATORY OBLIGATION MORE HONOURED IN THE BREACH…)
The recent post on the decision in Ashley Wilde Group Ltd v BCPL Ltd [2019] EWHC 3166 (IPEC) highlights a common omission from many expert reports. The expert’s duty to consider whether there is a range of opinion and to give…
EXPERTS, IMPARTIALITY AND CELEBRITY BEDSPREADS: BE CAREFUL OF THE WAY YOU INSTRUCT EXPERTS AND YOU MAY SLEEP TIGHTLY (YOU SHOULD BE SO LUCKY)
In Ashley Wilde Group Ltd v BCPL Ltd [2019] EWHC 3166 (IPEC) HHJ Melissa Clarke considered, and was critical of, the way in which an expert was instructed. The difficulty was that the appointed expert moved from “hired gun” hired…
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