EXPERT WATCH 79: WHEN A LITIGANT INSTRUCTS AN EXPERT AND THEN SEEKS PERMISSION TO RELY ON THEM: MIXED RESULTS
A party instructing an expert without obtaining permission from the court in advance runs a risk. Considerable expenditure can be incurred and yet the court may refuse permission. However, on occasions, it is necessary to actually have the report to…
EXPERT WATCH 78 : “ROWING BACK”?: WHEN AN EXPERT CHANGES THEIR VIEW AFTER THE JOINT REPORT: “THAT IS NOT THE FAIR OR PROPER WAY FOR PUTTING NEW EXPERT EVIDENCE BEFORE THE COURT”
Here we look at a case where an expert essentially changed their mind after a joint report. Although the expert stated that he had not “rowed back” the judge was clear that there had been a change of view and…
EXPERT WATCH 77 : YOU CANNOT WAIT UNTIL TRIAL TO COMPLAIN ABOUT THE ABSENCE OF EXPERT EVIDENCE (PARTICULARLY WHEN YOU HAVE EARLIER SAID IT WAS UNNECESSARY)
Here we have a case where the defendants, in a skeleton argument for trial, argued that the claimants could not succeed because they had to expert evidence to support their case for breach of duty. That submission was roundly rejected…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … APPLYING TO RELY ON EXPERT EVIDENCE (2): A GUIDE FOR RESPONDENTS: 10 KEY POINTS WITH USEFUL LINKS
This post is (obviously) the mirror image to the earlier post on applying to rely on expert evidence. Here we look at guidance for those opposing an application to rely on expert evidence. Again there are links to posts that…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT… APPLYING FOR PERMISSION TO RELY ON EXPERT EVIDENCE ? A GUIDE FOR APPLICANTS: 10 KEY POINTS WITH USEFUL LINKS
A post yesterday dealt with an unsuccessful application to rely on expert evidence. This is an opportune moment to review the steps that a party seeking to rely on expert evidence should take. In the interest of balance a later…
EXPERT WATCH 76 : EXPERT EVIDENCE MAY ASSIST, BUT THAT DOES NOT MEAN IT IS REASONABLY REQUIRED: PERMISSION REFUSED IN AN APPEAL WORTH TENS OF MILLIONS
We are looking at a case where the tribunal considered whether a party should be granted permission to rely on expert evidence. The judge went back to first principles to consider the issue. It was a high value case with…
EXPERT WATCH 75: A CASE REPLETE WITH EXPERT ISSUES: A FAILURE TO PREPARE A JOINT REPORT PLUS THE CLAIMANT CREATES DIFFICULTIES FOR ITSELF WHEN IT DOES NOT ASK ITS EXPERT TO REPORT ON POSSIBLE ALTERNATIVE OUTCOMES
This is the second post on experts today. Here we are in a very different context – the law of dilapidations. This is an area that often requires expert input. In this case we see manifold problems with the way…
EXPERT WATCH 73: AN “AD HOMINEM ATTACK” ON A PARTY’S EXPERT FAILS TO IMPRESS THE JUDGE
The Intellectual Property Enterprise Court is usually the most genteel of courts particularly when it comes to the treatment of expert evidence. That is one of the reasons this judgment comes as somewhat of a surprise. The strategy adopted in…
EXPERT WATCH 72: THE DEFENDANT HAD LEFT IT TOO LATE TO OBJECT TO THE CLAIMANTS’ EXPERT EVIDENCE: THIS SHOULD HAVE BEEN DONE AT TRIAL NOT AT THE APPEAL STAGE
If a party is going to object to their opponents relying on expert evidence this is best done promptly. Leaving it to the appeal stage is dangers – as this case shows. The defendant received a report, commented on the…
EXPERT WATCH 71: “I DO NOT ATTACH WEIGHT TO THIS REPORT AS EXPERT EVIDENCE”: THE EXPERT WAS “ADVOCATING” AND “HE TRESPASSES INTO THE ROLE RESERVED TO THE TRIBUNAL”
We have seen that judge jealously (and rightly) guard against experts trespassing into the judicial role of fact finding. They are also suspicious of experts that take the role of advocates rather than independent experts. We see both of these…
LAWYERS AND ARTIFICIAL INTELLIGENCE AVOIDING THE PITFALLS (4): EXPERTS AND THE USE OF AI: A LOT OF DANGER AREAS HERE: 20 KEY POINTS
Here we consider the risks that occur when experts use AI when they prepare a report or give evidence. We have seen several examples on this blog of evidence going awry. Here we draw upon guidance from previous posts, but…
EXPERT WATCH 69: “THE APPROACH OF BOTH EXPERTS IS WRONG” : WHEN THERE IS A DIFFERENCE IN VALUATION OF $170 MILLION… THE JUDGE DOES NOT HAVE TO SIMPLY PICK A SIDE..
In this case the judge was categoric in his view that the approach of the experts from both sides was wrong. There was a major difference between the experts – just under $170 million. In these circumstances the judge is…
EXPERT WATCH 68: THE MISUSE OF AI: “CREATE ME AN EXCEPTIONAL EXPERT WITNESS REPORT”: SHOW HOW MY CLIENT “IS 0% AT FAULT”: THIS WITNESS HAD A FEW PROBLEMS…
“What happens in America eventually happens over here” is a well known maxim. It is for that reason we are looking at a case about expert evidence and the use of artificial intelligence from the United States. (To be frank…
EXPERT WATCH 67: LITIGANTS NOT ALLOWED TO RECOVER THE COSTS OF AN EXPERT WHOSE EVIDENCE ON SOME ISSUES WAS “LARGELY UNHELPFUL”
It is rare to be able to see a costs decision on the recoverability of the costs of expert evidence. We have such a case here where the Competition Appeal Tribunal considered whether to allow a successful party to recover…
EXPERT WATCH 65 : WHEN THE JUDGES SAY “WE ATTACH VERY LITTLE WEIGHT” TO A REPORT IT IS CLEAR THAT SOMETHING HAS GONE WRONG
This judgment is critical of the way in which an expert report was prepared. The problems were manifold in relation to the way in which the information was obtained, the way it was presented and the failure to consider primary…
EXPERT WATCH 63: WHEN A DOCTOR WRITES TO THE COURT AND THE JUDGE FINDS THE INFORMATION “UNRELIABLE”
There have been a number of cases where the courts have considered letters, or less formal “reports”, provided by doctors to support elements of a litigant’s case, usually in relation to an application for adjournment or procedural issue. There was…
EXPERT WATCH 62: ANOTHER CASE WHERE THE EXPERT DID NOT UNDERSTAND THE “BOLAM” TEST: PLUS THE DANGERS OF INSTRUCTING AN EXPERT BY A “PORTAL”
For the second time today I am writing about a case where the trial judge was concerned that an expert witness for the claimant did not fully understand the “Bolam” test. The concern also extends to the way in which…
EXPERT WATCH 61: THE EXPERT WAS TELLING ME WHAT THEY WOULD HAVE DONE RATHER THAN APPLYING THE BOLAM STANDARD: CLAIMANT’S CASE FAILS AT TRIAL
This case looks at a common issue in relation to experts, particularly in clinical negligence cases. Specialists can report on what they would have done (given their own level of expertise) rather than what the “reasonable” practitioner would have done. …
EXPERT WATCH 60: THE JUDGE’S ASSESSMENT OF THE EXPERTS IN THE DIESEL EMISSIONS CASE: AN EXHAUSTING TRIAL?
We are looking here at a major case where the claimants were heavily reliant on expert evidence. They way in which the judge viewed the experts was crucial. This was not a case where the judge found fault with the…
BACK TO BASICS MONDAY: EXPERT WITNESSES HAVE TO HAVE ACCESS TO THE SAME MATERIAL: THE IMPORTANCE OF THE LEVEL PLAYING FIELD
The post earlier this morning set out the judge’s reservations about the nature of the information given to the claimant’s experts. In particular the failure to give the sources of their information. In fact the requirements go further than that. …
EXPERT WATCH 58: SHOULD A DEFENDANT HAVE PERMISSION TO RELY UPON A NEW EXPERT WHICH WOULD LEAD TO THE TRIAL DATE BEING VACATED?
Here we have a case where a defendant applied, late in the day, for an expert in a different discipline to those that had reported to date. Further that application was heard a month before the trial date. The judge…
EXPERT WATCH 57: JUDGE DECIDES THAT AN EXPERT, THAT HAS NOT COMPLIED WITH THEIR DUTIES TO THE COURT, SHOULD BE NAMED; “HE HAD A CHOICE TO INVOLVE HIMSELF IN THESE PROCEEDINGS AND TO BE PAID FOR DOING SO…”
Here we are looking at a decision related to the case we looked at yesterday relating to a medical expert in a family case. The judge gave a decision on whether an expert, who she found had failed in their…
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…
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…
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…
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”…
EXPERT WATCH 48: HOW AN EXPERT WITNESS CAN LOSE CREDIBILITY AT TRIAL (IN A CLINICAL NEGLIGENCE CASE – BUT THE PRINCIPLES ARE UNIVERSAL…)
Some areas of litigation rely heavily on expert evidence. Clinical negligence is often one of those areas. It is always interesting to read judicial views when a matter reaches trial. Here was have a judgment where the judge considered aspects…
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…
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…
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…
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…
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…
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