LITIGATORS KEEP A CAREFUL LOOK OUT: ITS YOUR DUTY TO MONITOR YOUR EXPERT’S CONDUCT (OTHERWISE ITS YOUR CLIENT THAT SUFFERS)
One specific aspect of the judgment in Mayr & Ors v CMS Cameron McKenna Nabarro Olswang LLP [2018] EWHC 3669 (Comm) that needs emphasising is the duty the case places on a litigant’s lawyers to monitor the conduct of an expert and…
INTRANSIGENT EXPERT’S APPROACH LEADS TO “SIGNIFICANT PART OF CLAIMANT’S CASE BEING STRUCK OUT”: A CASE FOR EVERY EXPERT AND LITIGATOR TO READ – NOW
The judgment of Mr Justice Males in Mayr & Ors v CMS Cameron McKenna Nabarro Olswang LLP [2018] EWHC 3669 (Comm) is one of the most robust I have seen in relation to expert evidence. An expert’s failure to properly engage…
EXPERTS IN THE FAMILY COURT: PERMISSION TO ADDUCE EXPERT EVIDENCE REFUSED
I usually look at cases in the family courts when there are judgments that may be of some interest to civil litigators. The judgment of Mr Justice Keehan in M v Derbyshire County Council & Ors [2018] EWHC 3734 (Fam) …
BREXIT AND CIVIL PROCEDURE: EXPERTS ARE NOT BE CROSS EXAMINED ON FORESEEABILITY OF UK LEAVING THE EU
This is a far less exciting case than the headline suggests, however it is the first case I have seen about the impact of Brexit on civil procedure (albeit indirectly). In Canary Wharf (Bp4) T1 Ltd & Ors v European Medicines…
EXPERT WITNESS INDEPENDENCE AND IMPARTIALITY: HOW DO YOU DEAL WITH THE “BOMBASTIC BULLSHITTER”? A CHECKLIST TO ENSURE EXPERT IMPARTIALITY
I am grateful to Professor Penny Cooper for sending me a copy of the report she authored with Dr Michelle Mattison for the Expert Witness Institute – “Towards Expert Witness Independence and Impartiality”. This post is just a snapshot, to…
EXPERT EVIDENCE: THE DANGERS OF JUMPING THE GUN: JUDGES DO NOT PASSIVELY ACQUIRE AN ENCYCLOPEDIC KNOWLEDGE OF THE CONTENTS OF BUNDLES BY OSMOSIS
There is so much for litigators to learn from the judgment of Master Thornett in Hall v Derby Teaching Hospitals NHS Foundation Trust [2018] EWHC 3276 (QB) that I considered a series of blog posts. There are a number of central…
GUIDANCE TO EXPERTS, STRAIGHT FROM THE BENCH: ONLY PUT YOUR HAT WHERE YOU CAN REACH IT: AVOID EXPERT-WITNESS-ITIS
There are several series on this blog which features judges giving advice to advocates. In his keynote address to the Bond Solon Experts conference Lord Justice McFarlane gives advice to experts. As ever the aim of this post is to…
EXPERTS BEHAVING BADLY: WHY RECENTLY CROSS-EXAMINED EXPERTS SHOULD NOT E-MAIL THE OTHER SIDE’S COUNSEL…
In D (A child : parental alienation) [2018] EWFC B64 HHJ Clifford Bellamy had to deal with the unusual situation in which an expert witness e-mailed counsel who had cross-examined him. “I was surprised, therefore, to receive an email from Mr…
TRYING TO APPEAL FINDINGS OF FACT AND EXPERT EVIDENCE: IT IS VERY DIFFICULT – AND THE TCC IS NO DIFFERENT TO OTHER COURTS
Lord Justice Coulson used the judgment in Wheeldon Brothers Waste Ltd v Millennium Insurance Company Ltd [2018] EWCA Civ 2403 to remind (some) litigators of some key principles in relation to appeals on findings of fact. He emphasised that the Technology…
TRYING TO SNEAK EXPERT EVIDENCE INTO A WITNESS STATEMENT: PEOPLE MIGHT NOTICE: DEFENDANT’S ATTEMPT TO EXHIBIT EXPERTS STRUCK OUT
There have been numerous cases in which parties have attempted to give expert evidence in witness statements. Another example can be seen in the decision in New Media Distribution Company Sezc Ltd v Kagalovsky [2018] EWHC 2742 (Ch). An attempt to…
NEW WITNESS STATEMENTS AND EXPERT EVIDENCE NOT ALLOWED: DENTON APPLIED TO CASE MANAGEMENT: COMPLIANCE WITH DIRECTIONS IS THE ONLY SAFE OPTION
In SJ Moore (Jeweller) Limited -v- Squibb Group Limited [2018] EWHC 2731 (QB) Denton principles were considered and applied when the defendant wanted to adduce new evidence. What is notable here is the fact that the defendant had the expert…
“RECKLESS EXPERTS”: SHOULDERING THE BLAME: WHEN THE EXPERT HAS NOT READ THE DOCUMENTS TO HAND
The judgment in Liverpool Victoria Insurance Company Ltd v Khan & Ors [2018] EWHC 2581 (QB) was looked at earlier. It made the point that “reckless” reporting by experts can lead to experts being in contempt of court. This led me to…
SOLICITORS AND EXPERT WITNESSES CAN GO TO JAIL: WITNESS STATEMENTS AND THE VASTLY CHANGED MEDICAL REPORT
In Liverpool Victoria Insurance Company Ltd v Khan & Ors [2018] EWHC 2581 (QB) Mr Justice Garnham found a solicitor and a doctor in contempt of court. The solicitor was imprisoned for 12 months, the doctor given a six month sentence,…
EXPERT EVIDENCE – SHOULD YOU FRET ABOUT WHAT THE EXPERT HAS QUOTED? I DON’T LIKE MONDAYS BUT YOU CAN KEEP THE GUITAR PARTS
In Moylett v Geldof & Anor [2018] EWHC 893 (Ch) Mr Justice Carr considered some aspects relating to the admissibility of expert evidence. Statements of others included in a report are not expert evidence, however the inclusion of those statements did…
AN EXPERT’S IMPARTIALITY CAN ONLY BE STRETCHED SO FAR: THE COURTS HAVE SAID THIS TYNE AND TYNE AGAIN
I am grateful to barrister Charles Holland for sending me a copy of the decision of District Judge Meek in Endless Stretch -v- Newcastle County Council. A copy can be found in the link on this page. This case is…
PROVING THINGS 122: THE CLAIMANT MAY NOT BE DISHONEST BUT SHE IS NOT ACCURATE: A HIGH IQ IS NO GUARANTEE OF COMMONSENSE
Many cases rest on the credibility of witnesses. A detailed examination can be found in the judgment of HH Judge Saggerson (sitting as a High Court Judge) in Hibberd-Little v Carlton [2018] EWHC 1787 (QB). There are issues here in relation…
EXPERTS, LAWYERS & THE JOINT REPORT (II): NO SUBSTANTIVE INPUT FROM LAWYERS PLEASE
This is the second case today looking at observations made in cases this week in relation to the joint meeting of experts. In BDW Trading Ltd v Integral Geotechnique (Wales) Ltd [2018] EWHC 1915 (TCC) HH Honour Judge Stephen Davies stated…
ERRORS BY YOUR OWN EXPERT ARE NOT GOING TO LEAD TO A WIN ON APPEAL: A KNOTTY SITUATION
In Network Rail Infrastructure Ltd v Williams & Anor [2018] EWCA Civ 1514 the Court of Appeal considered a “rather obscure” argument that an error by the appellant’s expert should lead to damages being reconsidered. “It would be quite wrong…
WHEN IS A REPORT NOT A MEDICAL REPORT? RELIEF FROM SANCTIONS GRANTED WHEN CLAIMANT FAILED TO SERVE A “MEDICAL REPORT” WITH THE PARTICULARS OF CLAIM
In a judgment given today at Leeds County Court His Honour Judge Gosnell held that a claimant, seeking damages for industrial deafness, breached the rules when issuing by not serving a medical report but serving an “AMR” report. The judge,…
PROVING THINGS 113: POOR EVIDENCE COLLECTION: EXPERTS STRAYING WELL BEYOND THEIR REMIT AND WHO ARE “NOT ENTITLED TO REACH THAT CONCLUSION”
Family cases, however, often come up with interesting observations in relation to the judge’s role as a fact finder. Similarly much can be gained by looking at the judge’s observations on experts. We see a critique of the process of…
PROVING THINGS 109: WHEN A DEFENDANT IS ABLE TO OBTAIN SUMMARY JUDGMENT IN A CLINICAL NEGLIGENCE CASE
NB THIS DECISION WAS OVERTURNED ON APPEAL SEE THE REPORT HERE In Hewes v West Hertfordshire Hospitals NHS Trust & Ors [2018] EWHC 1345 (QB) Master Cook allowed a defendant’s application for summary judgment. It is a classic case of a…
PROVING THINGS 108: PROVING PROFESSIONAL NEGLIGENCE WITHOUT EXPERT EVIDENCE
In Avondale Exhibitions Ltd v Arthur J. Gallagher Insurance Brokers Ltd [2018] EWHC 1311 (QB) His Honour Judge Keyser QC (sitting as a Judge of the High Court) considered the issue of whether it was necessary to adduce expert evidence to…
PROVING THINGS 95: OH… WHY A COMBATIVE EXPERT WITNESS NEVER HELPS: LEAVE ADVOCACY TO THE ADVOCATES…
Crown Office Chambers have a short post on their website that deals with the judgment in Ruffell -v- Lovatt HHJ Hughes 4 April 2018. The post provides a link to the judgment itself. The judgment is another example of a…
PROVING THINGS 92: WHERE THE CLAIM FOR DAMAGES WAS LARGELY “WISHFUL THINKING”: £1 MILLION CLAIM REDUCED TO £25,104 (OH & THROW IN A ERRANT EXPERT AS WELL)
The judgment of John Martin QC (sitting as a High Court judge) in London College of Business Ltd v Tareem Ltd & Anor [2018] EWHC 437 (Ch) is a prime example of a failure to prove damages. The claim was…
HAS THE WITNESS FOR THE OTHER SIDE WRITTEN A BOOK? THAT IS AN INTERESTING QUESTION: RESEARCHING AN EXPERT BEFORE THEY GIVE EVIDENCE
I have lost track of the number of interlocutory judgments there have been in the case of Kimathi & Ors v Foreign and Commonwealth Office. The latest judgment being at [2017] EWHC 3054 (QB). This judgment deals with the issue…
“SOMETIMES AN UNIMPRESSIVE WITNESS SPEAKS THE TRUTH”: FACT FINDING AND THE CIVIL COURTS: PRIVY COUNCIL OVERTURN FINDINGS OF FACT
In Cleare v The Attorney General & Ors (Bahamas) [2017] UKPC 38 the Privy Council was scathing of the method of fact finding of the trial judge. The judge erred in failing to consider the significance of medical evidence. ” It…
WITNESSES WHO ARGUE THE CASE AND EXPERTS WHO ACT AS ADVOCATES: THIS IS NOT GOING TO HELP …
In British Telecommunications Plc v Office Of Communications [2017] CAT 25 the Competition Appeal Tribunal commented on two of the central evidential issues of much commercial litigation: witnesses who give much commentary and “argue” the case; experts who act as advocates. …
FINDINGS OF FACT AND EXPERT EVIDENCE: A JUDGE MAKES THE FINDINGS FIRST AND CONSIDERS THE EXPERT EVIDENCE NEXT
In Graham & Anor v Campfield & Anor [2017] EWHC 2746 (Ch) Mr Justice Birss made some important observations about findings of fact and expert evidence. It shows the importance of primary findings of fact and the limitations of expert evidence. …
THE ASSESSMENT OF EXPERT EVIDENCE: HANDWRITING EVIDENCE ADMISSIBLE : THE JUDGE FELT HE WAS IN SAFE HANDS
The judgment of Mr Justice Jay in ARB v IVF Hammersmith Ltd [2017] EWHC 2438 (QB) is one that has already made headlines. There is much of interest. However, that part of the judgment that deals with the analysis of…
EVIDENCE IN A CLINICAL NEGLIGENCE CASE: MISSING WITNESSES AND ERRANT EXPERTS: LIABILITY SHOULD HAVE BEEN ADMITTED EARLIER: ATTEMPT TO BACKTRACK FROM JOINT REPORT NOT SUCCESSFUL
The case of Palmer v Portsmouth Hospitals NHS Trust [2017] EWHC 2460 (QB) is one where the defendant was, ultimately, successful on the issue of causation. However the judge had some interesting observations as to the expert evidence called by both…
SOME WARNINGS AS TO EVIDENCE: A SYMPHONY REVIVED: HOW THE JUDGE CONDUCTS AN ASSESSMENT OF CREDIBILITY
The post yesterday on witness credibility in the case of Frenkel v Lyampert & Ors [2017] EWHC 2223 (Ch) referred to a passage in the earlier case of EPI Environmental Technologies Inc v Symphony Plastic Technologies plc (Practice Note) [2005] 1 WLR 3456. This…
EXPERT REPORTS: “CONTENTIONS THAT SHOULD NEVER HAVE BEEN PURSUED AT ALL”
In Maximov v Open Joint Stock Company “Novolipetsky Metallurgichesky Kombinat” [2017] EWHC 1911 (Comm) Sir Michael Burton (sitting as a High Court Judge) commented on the expert evidence in relation to Russian law. The fact that an expert made concessions…
WHEN ONE EXPERT TELLS THE OTHER EXPERT TO “GO BACK TO SCHOOL”: CASES ON CONDUCT AND THE MEETING OF EXPERTS
The case of Hatfield -v- Drax Power Ltd (18/08/2017)* highlights some of the issues that arise in the meeting of experts. The meeting is an important stage in many types of action, however the case law and rules relating to it…
AN EXPERT REPORT THAT WAS “EXTRAORDINARY IN ITS PRESENTATION AND SHOT THROUGH WITH BREATH TAKING ARROGANCE”: THIS DOESN’T END WELL
Problems caused by expert witnesses feature heavily on this blog. I am grateful to barrister Brian McCluggage for sending me a copy of the decision of Her Honour Judge Belcher in Hatfield -v- Drax Power Ltd (18/08/2017) which contains robust…
EXPERT WITNESS GIVEN “NO WEIGHT AT ALL”: FAILURE TO DISCLOSE A CONFLICT OF INTEREST
There are some interesting passages in the judgment of David Stone (sitting as a Deputy High Court Judge) in Technomed Ltd & Anor v Bluecrest Health Screening Ltd & Anor [2017] EWHC 2142 (Ch). Here we look at the judgment…
PROVING THINGS 65: : ASSUMPTIONS ARE NOT EVIDENCE: (IF THE COURT OF APPEAL HAVE TO ASK FOR THE MATTER TO BE MADE SIMPLE YOU ARE IN SERIOUS TROUBLE)
The case of Ted Baker Plc & Anor v Axa Insurance UK Plc & Ors [2017] EWCA Civ 4097 could serve as a parable of modern litigation. The claimant won the first trial on this matter, establishing the defendant insurers were…
EXPERT EVIDENCE: WHEN PART OF THE EVIDENCE IS “ABSURD” – THIS IS NO SMALL BEER
I am grateful to barrister Simon Mills for sending me a copy of the judgment of Judge Waksman QC (sitting as a judge of the High Court) in BHL -v- Leumi ABL Limited [2017] EWHC 1871 (QB). Here I look at…
EVIDENCE OF PREVIOUS EXPERT DOES NOT HAVE TO BE DISCLOSED: THE IMPORTANCE OF THE REASON FOR THE CHANGE OF EXPERT
In Condor Vilca & ors -v- Xstrata Limited [2017] EWHC 582 (QB) Mr Justice Stuart-Smith rejected an application that a party disclose its previous expert evidence when it needed to change its choice of expert. The reason for the change…
WHEN IS AN EXPERT NEEDED? NOT HERE
CPR 35. imposes a duty on the court to restrict expert evidence “Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings”. This has led to some interesting case law. The most recent discussion is…
JUDICIAL INTERVENTION, INTERRUPTIONS AND HOT TUBBING: JUDICIAL LATITUDE IS NOT UNLIMITED
In Shaw -v- Grouby [2017] EWCA Civ 233 the Court of Appeal made some observations about the dangers of a judge getting too inquisitorial in the course of a trial, particularly in the course of cross-examination. “The judge intervened in…
THE TRIAL JUDGE AND FINDINGS OF FACT: COURT OF APPEAL DID NOT OVERTURN FINDINGS OF TRIAL JUDGE
A disappointed insurer failed in its attempt to overturn findings of a trial judge in Hamid -v- Khalid [2017] EWCA Civ 201. “The task of a trial judge is difficult enough without having to deal expressly with every single piece…
PLEADINGS, FACTS AND EXPERT EVIDENCE: EXPERT SHOULD NOT “USURP THE FUNCTION OF THE COURT”
There is an interesting discussion of the purpose of pleadings and expert evidence in the judgment of HH Parkes QC in PP -v- The Home Office [2017] EWHC 663 (QB). The fact that an expert report is referred to in…
EXPERT EVIDENCE AND EXPERT CREDIBILITY: DISCLOSING KNOWLEDGE OF THE PARTIES IS IMPORTANT
In Thefaut -v- Johnson [2017] EWHC 497(QB) Mr Justice Green made some important observations about the need for experts to be candid about their prior knowledge of, and relationships with, the parties to the action. A failure to mention knowledge…
PROVING THINGS 57: LEASE SAID SOONEST MENDED: CLAIM FOR SUBSTANTIAL DAMAGES FAILS (AND GUESS THE REASON)
This series often looks at cases that have floundered at trial – usually because of the absence of basic evidence to prove a litigant’s case. This can be seen again in the judgment of Mr Stephen Furst QC in Car…
EXPERT WITNESSES: RARELY TOTALLY IMPARTIAL BUT SOME ARE LESS PARTIAL THAN OTHERS
There is a short passage in the judgment of His Honour Judge Hacon in Edward Lifesciences -v- Boston Scientific 2017] EWHC 405 (Pat) (03 March 2017) that encapsulate the issues surrounding the assessment of expert evidence. “Rarely, if ever, is an…
EXPERTS AND THE OVERRIDING OBJECTIVE: DEFENDANT ALLOWED TO RELY ON EXPERT ALSO USED BY CLAIMANT
In Wheeldon Brothers Waste Limited -v- Millennium Insurance Company Limited [2017] EWHC 218 (TCC) Mr Justice Coulson allowed the defendant to rely on an expert that had also been instructed by the claimant. The circumstances are unusual and the case needs…
PROVING THINGS 52: SOLICITOR’S NEGLIGENCE ACTION FAILS ON ALL COUNTS: NO NEGLIGENCE AND NO LOSS
The judgment of HHH David Cooke today in Anderson Properties Ltd -v- Blyth Liggins [2017] EWHC 244 (Ch) is another example of a solicitor’s negligence case failing because of the absence of basic evidence in relation to liability, causation and damages….
TRIAL JUDGE’S REJECTION OF EXPERT WITNESS CREDIBILITY UPHELD BY THE COURT OF APPEAL: IF AN EXPERT KNOWS A PARTY THEY SHOULD SAY SO
In EXP -v- Barker [2017] EWCA Civ 63 the Court of Appeal upheld the trial judge’s rejection of the evidence of an expert witness. “the starting point is to identify what the judge decided. He considered that the witness had…
THE JUDICIAL ASSESSMENT OF EVIDENCE: AN ESSENTIAL SUMMARY
In the judgment today in The Queen on the application of ASK -v- The Secretary of State for the Home Department [2017] EWHC 196 (Admin) Mr Justice Green sets out a template for the judicial assessment of evidence. It provides…
EXPERT WATCH II: ATTEMPTS TO SNEAK THE EVIDENCE IN
There are some examples of ingenious attempts to introduce expert evidence into cases. Mr Justice Arnold commented on this in his judgment in Teva UK Ltd -v- Gilead Sciences Inc [2017] EWHC 13 (Pat). A “factual” report from an expert is…
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