PAYING EXPERT’S FEES: INFORMING AN EXPERT THAT A HEARING IS CANCELLED AND – GETTING STRUCK OFF THE ROLL OF SOLICITORS …
The judgment in the case of Clegg v Solicitors Regulation Authority [2019] EWHC 2408. A solicitor was struck off, in circumstances that could easily have been avoided. It required the simple step of informing an expert that a trial had…
HOW DO YOU VALUE A FOOTBALL CLUB: EXPERTS DISCUSS THE ODDS: BLADES AWAY
There is an interesting passage in the judgment in UTB LLC v Sheffield United Ltd & Ors [2019] EWHC 2322 (Ch) in relation to experts. It is an interesting example of expert evidence of valuation in a, relatively unusual, case…
AN “EMBARRASSING” EXPERT WHO USED AN EXPLETIVE WHILST GIVING EVIDENCE: GUESS WHERE THIS CASE IS GOING?
The judgment of Mr Justice Martin Spencer in Arksey v Cambridge University Hospitals NHS Foundation Trust [2019] EWHC 1276 (QB) is interesting on the subject of causation and medical negligence. However the claimant’s problems came largely from reliance on an…
PROVING THINGS 159: A FORMULAIC APPROACH TO EVIDENCE WHICH LEADS TO CONFIRMATION BIAS: THE DANGERS OF PRO FORMA EVIDENCE GATHERING
This blog has looked, several times, at the way in which the family courts look at both expert and lay witness evidence. The judgments of the family courts contain many examples of issues that arise throughout civil litigation. We see…
PROVING THINGS 157: DEFECTS IN EVIDENCE “SO FUNDAMENTAL” THAT APPLICATION DISMISSED
In Mircom International Content Management & Consulting Ltd & Ors v Virgin Media Ltd & Anor [2019] EWHC 1827 (Ch) Mr Recorder Campbell QC (sitting as a High Court judge) refused an application on the grounds that the evidence was…
PROVING THINGS 156: MEDICAL EXPERTS, CAUSATION, CLINICAL NEGLIGENCE, ABSENT EVIDENCE
In ZZZ v Yeovil District Hospital NHS Foundation Trust [2019] EWHC 1642 (QB) Mr Justice Garnham found that there had been a breach of duty by the defendant hospital, but those breaches had no causal relevance. The case is interesting for…
DEFENDANT REFUSED PERMISSION TO RELY ON “SPECIALIST” EVIDENCE AS TO LIFE EXPECTANCY: THE CIRCUMSTANCES IN WHICH SUCH EVIDENCE IS ALLOWED AND CONSIDERED
In Dodds v Arif & Anor [2019] EWHC 1512 (QB) Master Davison refused the defendant’s application to rely on a specialist report in relation to the claimant’s life expectancy. The judgment also contains an important summary of the circumstances in…
EXPERT WITNESSES: A CRISIS IN THE CRIMINAL COURTS – RECOMMENDED READING FOR ALL LITIGATORS
Matthew Scott’s “Barrister Blogger” blog is always an interesting read. His latest post Expert witnesses: a crisis in the criminal courts is essential reading for everyone involved in any type of litigation – and also for anyone who is an…
THE EXPERT WITNESS AND THE “HIRED GUN”: THE FACT THAT EXPERTS WERE VERY EXPENSIVE (AND FEES WERE FIXED IN RETROSPECT) DID NOT MAKE THEM UNRELIABLE
In O’Leary v Mercy University Hospital Cork Ltd [2019] IESC 48 the Supreme Court of Ireland made some telling observations on the role of the expert witness. Problems with experts are clearly not confined to one jurisdiction. OPENING OBSERVATIONS OF…
THE APPOINTMENT OF A SINGLE JOINT EXPERT DOES NOT DISPLACE THE TRIAL JUDGE: EXPERTS SHOULD NOT “OVERREACH”
In O v B-M [2019] EWFC B23 Mr Recorder Allen QC noted that a Single Joint Expert had gone beyond their remit in making findings of “fact”. The parties do not “abdicate” findings to a single joint experts and the…
GUIDANCE ON INSTRUCTING EXPERTS (3): THE INSTRUCTION OF EXPERTS: THE CIVIL JUSTICE COUNCIL GUIDANCE
We are returning to the Civil Justice Council “Guidance for the instruction of experts in civil claims”. This time the guidance on the instruction of experts. Remember this guidance is incorporated into the rules. It provides a essential information as…
GUIDANCE ON INSTRUCTING EXPERTS (2): THE APPOINTMENT OF EXPERTS: THE CIVIL JUSTICE COUNCIL GUIDANCE
The importance of the guidance given by the Civil Justice Council “Guidance for the instruction of experts in civil claims” is often overlooked. Not only are few people aware of exist of the guidance, fewer still are aware that it…
GUIDANCE ON INSTRUCTING EXPERTS (1): GUIDANCE FROM THE LAWYERIST: “MUCH LIKE A COWBOY HERDING CATTLE”
Instructing expert witnesses is an important step in many actions. The advantages, and problems, caused by experts are well known and widely reported recently. This is one of the matters that crosses boundaries and gives rise to common problems across…
WHO IS AN EXPERT? NOW THERE’S A QUESTION: DEFINITIONS OF “EXPERT” CONSIDERED
The collapse of the “carbon credit fraud” prosecution today because an “expert” was found out to have no actual expertise leads to consideration of how exactly the courts define an “expert” . This does not give rise to a straightforward…
TALES FROM THE APIL CONFERENCE 3: EXPERT WITNESSES ON LIABILITY: THE DEFENDANT’S EXPERT “DID NOT TREAT THE DEFENDANT’S CASE WITH THE IMPARTIALITY WHICH HIS DUTY TO THE COURT REQUIRES”
Yesterday, at the conference, I was talking on the subject of the use of expert witnesses in establishing liability. There is an almost immutable rule of law that a new case comes along the day after you have been lecturing…
CIVIL PROCEDURE BACK TO BASICS 43: CROSS EXAMINING EXPERTS: USEFUL GUIDES AND LINKS
Cross-examining experts is possibly one of the most daunting aspects of advocacy. If an advocate gets into a “debate” with an expert then the advocate normally loses. If the advocate is too brutal the cross-examination can backfire, too supine and…
AN “UNFORTUNATE CHANGE OF VIEW” BY AN EXPERT: ANOTHER EXAMPLE OF A REPORT NOT BEING ROBUST AND CAUSING DIFFICULTY FOR LITIGANTS
There have been several posts this month about experts, particularly valuation experts. There are short passages in the judgment of Chief Master Marsh in Bakrania & Anor v Shah & Ors [2019] EWHC 949 (Ch) which provide another example. THE…
WHEN AN EXPERT RELIES ON MATTERS FROM THE INTERNET FOR MATTERS OUTSIDE THEIR EXPERTISE THEN YOUR CASE IS LIKELY TO FALL APART: THE CIDER HOUSE RULES
I am returning to the decision of HHJ Paul Matthews (sitting as a High Court Judge) in Devon Commercial Property Ltd v Barnett & Anor [2019] EWHC 700 (Ch). Here was are looking at the judge’s view of one of the experts….
GIVING EVIDENCE AT TRIAL: JUST BECAUSE THE COURT HAS SAID YOU MAY – IT DOESN’T MEAN YOU WILL: HOW TO FAIL OF YOUR OWN ACCORD
Trials are always stressful events for the participants. They require careful preparation and are usually subject to close case management. Imagine the difficulties when you turn up at the trial and the judge says that the evidence you are relying…
SHOULD AN ERRANT EXPERT GO TO JAIL? COURT OF APPEAL DECISION: MAKING A FALSE STATEMENT SHOULD LEAD TO JAIL
In Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392 the Court of Appeal set out clear guidance for courts considering sentencing in cases relating to reckless contempt on the part of expert witnesses. A “reckless” statement made…
GIVING NOTICE THAT YOU ARE GOING TO ATTACK AN EXPERT’S CREDIBILITY: ISSUES THAT ARISE WHEN EXPERT’S HAVE PRIOR DEALINGS WITH THE PARTIES
In Hamad M. Aldrees & Partners v Rotex Europe Ltd [2019] EWHC 574 (TCC) Sir Antony Edwards-Stuart expressed concern about an attack on the credibility of an expert witness. In that case there was no evidence to support an assertion that…
PROVING THINGS 145: WHEN EXPERTS ARE OF NO HELP AT ALL: IT IS THE FACTS THAT WON IT
I am giving a seminar on “Expert Witnesses and Liability” at the APIL Annual Conference in May. The judgment of HHJ McKenna (sitting as a High Court judge) in Al-Iqra & Ors v DSG Retail Ltd [2019] EWHC 429 (QB) gives…
WHEN EXPERTS REPORT THINGS THAT HAVE NEVER BEEN SAID: IT NEVER GOES WELL (WHEN THEY ARE FOUND OUT AT LEAST)
There was report in the Scottish newspaper The Herald earlier this week about disciplinary proceedings being brought against a doctor who had prepared a “misleading and inaccurate” medical report. In essence the expert reported, as facts, matters that the interviewee…
SHOULD A “RECKLESS” MEDICAL EXPERT GO TO JAIL? WATCH THE ARGUMENTS IN THE COURT OF APPEAL
Last year I wrote about the judgment in Liverpool Victoria Insurance Company Ltd v Khan & Ors [2018] EWHC 2581 (QB). Among other things in that judgment it was found that a medical expert’s recklessness amounted to contempt of court. The expert…
CIVIL PROCEDURE BACK TO BASICS 29: EXPERTS AND FACTS: EXPERTS WHO VENTURE ONTO THE JUDGE’S TERRITORY DON’T USUALLY FARE TOO WELL
We have seen several cases recently where judges have objected, in clear terms, to an expert trying to find “facts”. That is properly a matter for the trial judge. It is worthwhile looking at the guidance and cases on this…
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…
THE WITNESS WHOSE STATEMENT WAS “SOMEWHAT FICTIONAL”: EXCELLENT EXPERTS WHO ROSE ABOVE THE FRAY
There are several aspects of the judgment in JAH v Burne & Ors [2018] EWHC 3461 (QB) that are of interest to civil litigators. Firstly it is another example of a case where the claimant’s witness statement was not accepted (at…
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…
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…
“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…
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…
PROVING THINGS 125: THE IMPORTANCE OF KEEPING YOUR OWN EXPERT IN THE LOOP: ALSO THE IMPORTANCE OF READING AN EXPERT’S NOTES
In Swift v Carpenter [2018] EWHC 2060 (QB) Mrs Justice Lambert gave a lengthy judgment in a high value personal injury case. One interesting aspect of that case is the problems caused by the defendant’s expert evidence on care. An additional…
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 AND THE JOINT-REPORT (1): JUST ONE AGENDA PLEASE
Curiously there are two cases today that deal with the role of lawyers and the joint report. The first I will look at is the judgment of Mrs Justice Yip in Welsh v Walsall Healthcare NHS Trust [2018] EWHC 1917 (QB)….
YOU LOST AT TRIAL – YOU ARE NOT GETTING A SECOND GO: THE JUDGMENT IS HAIR TODAY AND WILL NOT BE GONE TOMORROW…
In Liqwd Inc & Anor v L’Oreal (UK) Ltd & Anor [2018] EWHC 1845 (Pat) Mr Justice Birss refused a defendant’s application to “reopen the trial and decide one of the issues afresh” taking into account new evidence. “Many litigants, having…
PROVING THINGS 119: WITNESSES & EXPERTS : “IN A CASE OF FAIRLY REMARKABLE REPORTS, THIS WAS THE MOST EXTRAORDINARY”
If you want to see an example of problematic witness statements, and even more problematic expert witnesses, then read the judgment of Mrs Justice Jefford DBE in Castle Trustee Ltd & Ors v Bombay Palace Restaurant Ltd [2018] EWHC 1602 (TCC). …
FIFTH BIRTHDAY REVIEW 10: THE PROVING THING SERIES: SIZE DON’T SEEM TO MATTER…
This is the last in the series looking back at key series of posts on this blog over the past five years. Keen observers will note that most series last for about 10 posts. When the “Proving Thing” series started…
DAMAGES CLAIMED BUT NOT PLEADED: REALLY STRANGE WITNESS STATEMENTS; PARTISAN EXPERTS: THE ICI CASE IS BACK IN COURT
If you are ever looking for an example of matters going awry in litigation then read the judgment of Mr Justice Fraser in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC). All the usual problematic issues…
PROVING THINGS 115: WHEN HANDWRITTEN NOTES OF MEETINGS VARY FROM THE TYPED VERSION (AND THERE IS MORE…)
For the second time in recent weeks I am looking at how a judge assesses evidence in a family case. Again this shows issues of general importance and relevance in the relation of those responsible for gathering evidence in the…
PROVING THINGS 101:A RECAP – THE FIRST 100 POSTS : WHEN BASIC MATTERS ARE JUST NOT PROVEN
When I started this series I never anticipated it would run to 100 posts. Up until last week I had planned to stop after 100. However the Leeds Legal Walk served, inadvertently, as a feedback session for this blog. Since…
EXPERTS AS ADVOCATES FOR THE CLAIMANTS’ CAUSE: WITNESSES WHOSE EVIDENCE WAS VERY DIFFERENT TO THEIR WITNESS STATEMENTS
I am grateful to Dominic Regan for sending me a copy of the judgment of Mrs Justice Andrews today in Gee -v- Depuy International Ltd [2018] EWHC 1208. The judgment is 762 paragraphs long and will be widely read by…
PROVING THINGS 99: THE ROLE OF THE JOINTLY INSTRUCTED EXPERTS: TRIAL JUDGE COULD PREFER VIEWS OF OTHER EXPERT
The opinion of a single joint expert is not binding on the court. This is clear from the judgment of Mr Justice Turner today in HJ v Burton Hospitals NHS Foundation Trust [2018] EWHC 1227 (QB) “The opinion of a single…
PROVING THINGS 98: AN EASY AND OBVIOUS ROUTE TO REFUTE ALLEGATIONS OF NEGLIGENCE (WHICH WAS NOT DONE)
I am returning to the decision of Mr Justice Martin Spencer today in Lesforis v Tolias [2018] EWHC 1225 (QB). This time in the context of proving, or refuting, allegations of negligence. There was a simple route by which the defendant could have…
EXPERT WATCH: AN EXPERT WHO “SIGNALLY FAILED TO COMPLY WITH HIS BASIC DUTIES AS AN EXPERT”
Brilliant though it is the Secret Barrister’s book has not tempted me to write about criminal law. However it is always worthwhile keeping a weather eye on the behaviour and conduct of experts. Problems with experts are very similar across…
EXPERT EVIDENCE AS TO EARNINGS NOT NECESSARY (THOUGH NOT A CIVIL CASE): ASSESSMENT OF EVIDENCE IS THE JUDGE’S JOB NOT THE EXPERTS
I am trespassing into the area of family law to look at decision of Mr Justice Moor in Buehrlen v Buehrlen [2017] EWHC 3643 (Fam). It is of general interest to civil lawyers because it involves the court considering whether expert…
THE SHORTER TRIAL SCHEME: PROCEDURAL WRANGLING AND PROBLEMATIC EXPERT EVIDENCE: IT CAN’T BE BRUSHED ASIDE
In the judgment today in L’Oréal Société Anonyme RN Ventures Ltd [2018] EWHC 173 (Pat) Mr Justice Henry Carr set out his concerns on aspects of the procedure and expert evidence before the court. The judgment contains some lessons for litigators…
EXPERT REPORTS SHOULD BE EXCHANGED CONCURRENTLY: THE PRINCIPLES APPLIED IN A CAR HIRE CASE: WHEN EVIDENCE CAN AMOUNT TO A SKELETON ARGUMENT
The decision of District Judge Glen in Kansal -v- Tang (31st January 2017, County Court at Slough) is available on the DWF website. It says a lot about “expert” evidence about hire rates. In particular the judge’s comment that evidence…
CIVIL PROCEDURE REVIEW OF 2017 (III): EXPERTS: SNEAKINESS, DISCLOSURE OF CONFLICTS, ARROGANCE AND NO CONCEPT OF THE DUTY OWED TO THE COURT
There have been plenty of interesting cases on experts this year. Here are a few select cases. ATTEMPTS TO SNEAK EXPERT EVIDENCE IN There have been a number of cases where parties have attempted to “disguise” expert evidence. Teva UK…
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