FAILED ATTEMPT TO OBTAIN COSTS FROM A JOINT EXPERT: A LOT TO LEARN HERE
In Walker -v- TUI UK Limited (Manchester County Court 14th January 2021)* District Judge Obodai considered an application by the defendant to join a jointly instructed expert into the action as a party for the purpose of obtaining costs against…
EXPERTS NOT REALLY NECESSARY WHEN A JUDGE LOOKS AT BALLET SHOES: EVIDENCE SHOULD HAVE BEEN MORE EN POINTE
Instructing experts in circumstances where they are not necessary, or their evidence is not admissible, is a common theme in litigation. This issue was considered by Mr David Stone (sitting as a Deputy High Court Judge) in Rothy’s Inc v…
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…
WHEN A LITIGANT SEEKS TO DEFEND A CLAIM AT ALL COSTS: A HIGHWAY TO HELL: WHY, IN LITIGATION, IT IS IMPORTANT THAT YOU CAN SEE THE WOOD FOR THE TREES
The judgment of HHJ Mithani QC in Colar v Highways England Company Ltd [2019] EW Misc 17 (CC) has recently arrived on BAILLI. It provides an illustration of the danger of defending a claim “at all costs”. The judge was…
CLAIMANT IN LOW-VALUE PERSONAL INJURY CASE NOT ENTITLED TO RELY ON EXPERT REPORTS WHEN PROTOCOL NOT COMPLIED WITH: JUDGMENT ON APPEAL
In Mason -v- Laing (Bradford County Court 20th January 2020 Mason v Laing) HHJ Gosnell held that a claimant that failed to comply with the requirements as to instructing experts prior to a Stage 3 hearing could not rely on…
GUIDANCE ON GIVING REMOTE EVIDENCE: ESSENTIAL READING FROM THE ACADEMY OF EXPERTS
The Academy of Experts have written Guidance on Giving Remote Evidence. Although this is aimed at expert witnesses there is much that anyone involved in litigation can take away from this. SELECTED EXTRACTS There is much that is useful. …
THE TREATMENT OF EXPERT EVIDENCE AND APPEALS: ANOTHER CASE WHERE A JUDGMENT IN FAVOUR OF A DEFENDANT IS OVERTURNED
There has been much online discussion about the impact that the decision in Griffiths v TUI UK Ltd [2020] EWHC 2268 (QB) will have in relation to food poisoning cases and more generally. That case related specifically to the treatment 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…
CHANGES COMING INTO FORCE IN OCTOBER 1: CHANGES TO THE STATEMENTS GIVEN BY EXPERTS
The 122nd update Practice Direction Amendments come into force on the 1st October 2020. We have already looked at the changes to the rules relating to proceedings for contempt. Here we look at the change relating to the declaration that…
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…
LIFE EXPECTANCY IS RARELY A SIMPLE MATTER OF STATISTICS: APPLYING FOR A “VARIATION” OF DIRECTIONS: YOU SHOULD HAVE APPEALED
In the judgment this morning in Chaplin v Ben Pistol Allianz Insurance Plc [2020] EWHC 1543 (QB) Jay J rejected an application by the defendant to rely on expert evidence in relation to life expectancy. This judgment is important…
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…
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 36: DEFENDANT’S EXPERT TOLD TO GET ON HIS BIKE: WHEN A PARTY “WISELY” PLACES NO RELIANCE ON THEIR OWN EXPERT IN CLOSING SUBMISSIONS
Today we are looking again at the judgment of Mrs Justice Cox in Sinclair -v- Joyner [2015] EWHC Civ 1800 (QB). Some important observations about the role of the expert and the conduct of the expert instructed by the defendant…
COVID REPEATS 35: EXPERTS: DECLARATIONS OF TRUTH SIGNED RECKLESSLY
Problems with experts are very similar across all jurisdictions. The case of Pabon, R v [2018] EWCA Crim 420 is an illuminating one. A decision of the Court of Appeal Criminal Division it shows the dangers when an expert does not comply…
COVID REPEATS 34: EXPERTS, YACHTS AND THAT SINKING FEELING WHEN A CLAIMANT COMES TO GRIEF
Today we are looking back at the case of Hirtenstein -v- Hill Dickinson LLP [2014] EWHC 2711 (Comm) contains many interesting lessons for those involved in professional negligence litigation in particular. Here I just want to concentrate upon two:…
COVID REPEATS 32: EXPERTS: SEEING THE WOOD FOR THE TREES: THE EXPERT THAT DIDN’T BOUGH DOWN TO THE RULES…
This week, providing there are no major developments that draw us elsewhere, the repeats are going to be about cases relating to experts. Firstly we go back to 2014 the judgment of Mr Justice Coulson in Stagecoach Great Western Trains -v- Hind…
EXPERTS NOT FOLLOWING THE RULES: DEPLETES YOUR ENERGY: A HIGH COURT CASE
The “Covid Repeats” section of this blog next week will review cases relating to experts. Problems with experts remain a key issue in litigation. Primarily caused by the expert’s failure to follow the basic rules and court orders. Examples can…
DIVISIONAL COURT FINDS THAT EXPERT IN CONTEMPT OF COURT SHOULD HAVE BEEN ERASED FROM MEDICAL REGISTER: “NEW” EVIDENCE ADMITTED
The judgment of the Divisional Court today in General Medical Council & Ors v Zafar [2020] EWHC 846 (Admin) provides an interesting sequel to the earlier judgments in relation to contempt of court by a doctor who had been seriously…
MEDICAL EXAMINATIONS: MEDCO ALLOW REMOTE EXAMINATIONS
Last week Medco issued a ban on remote video medical examinations. Today it has changed its mind, in an announcement available here. THE ANNOUNCEMENT REMOTE EXAMINATIONS With immediate effect and until further notice the ban on remote video medical…
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…
CLAIMANT’S MEDICAL EXPERT ORDERED TO PAY DEFENDANT’S COSTS: EXPERTS PLEASE NOTE (EXPERTS’ INSURERS NOTE CAREFULLY)
In Thimmaya -v- Lancashire NHS Foundation Trust (30th January 2020, Manchester County Court) HHJ Claire Evans ordered that a medical expert pay a significant part of the defendant’s costs when she found that the expert had failed in his duties…
STAYING SANE AS A LITIGATOR 9: SHARING THE “PAIN”
Most of the burden of complying with time periods and court orders lies with the solicitor. However a solicitor’s life can be made easier by making sure that all those concerned with the litigation process know of the deadlines involved…
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…
CIVIL LITIGATION CASE OF THE YEAR: BATES -v- THE POST OFFICE: LITIGATING IN THE FACE OF “INSTITUTIONAL PARANOIA”
There was never any doubt in my mind as to the civil litigation case of the year – Bates -v- The Post Office. All civil litigation is here, witness and expert evidence, allegations of bias, disclosure and much more. One…
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…
PARTIES SHOULD OBTAIN PERMISSION OF THE COURT, AND DIRECTIONS, BEFORE INSTRUCTING EXPERTS
In Gulf International Bank BSC v Aldwood [2019] EWHC 1666 (QB) John Kimbell QC (sitting as a High Court judge) made some observations about using expert evidence on foreign law without the court’s permission. THE CASE The judge was…
CIVIL PROCEDURE BACK TO BASICS 67: EXPERTS ASKING THE COURT FOR DIRECTIONS: THIS CAN REALLY CUT THE MUSTARD…
One, unusual, aspect of the decision in Mustard v Flower & Ors [2019] EWHC 2623 (QB) is that the experts had sought directions from the court. This brings attention to the (apparently) little used provisions of CPR 35.14. Experts have the…
WHY WOULD ANYONE WANT TO RECORD THEIR MEETING WITH AN EXPERT WITNESS? TWO EXAMPLES WHERE THE COURT’S FOUND THAT AN EXPERT’S STATEMENT OF AN INTERVIEW WAS UNRELIABLE
An earlier post dealt with the case of Mustard v Flower & Ors [2019] EWHC 2623 (QB) and the claimant’s decision to record her appointments with the defendant’s medical experts. The issue of what, precisely, was said to an expert can…
CLAIMANT’S QUESTIONS TO DEFENDANT’S EXPERTS DISALLOWED: PART 35 HAS A REQUIREMENT FOR PROPORTIONALITY: EXPERTS SEEK HELP
There is another aspect of the judgment of Master Davison in In Mustard v Flower & Ors [2019] EWHC 2623 (QB) that is of considerable interest. The Master disallowed a series of lengthy questions to the experts. The Master pointed out…
COURT ADMITS CLAIMANT’S TAPES OF CONSULTATIONS WITH DEFENDANT’S EXPERTS: PROBATIVE VALUE OUTWEIGHS REPREHENSIBLE CONDUCT
In Mustard v Flower & Ors [2019] EWHC 2623 (QB) Master Davison allowed the claimant to produce as evidence the tapes they had recorded of their consultations with the defendant’s medical experts. This decision raises some interesting issues. (The case…
THE HONEST WITNESS WHOSE EVIDENCE WAS NOT ACCEPTED – BUT WHO STILL WON HER CASE: A CLOSE ANALYSIS OF THE LAY AND EXPERT EVIDENCE IN MORDEL
The result of the judgment today in Mordel v Royal Berkshire NHS Foundation Trust [2019] EWHC 2591 (QB) has already been well publicised. A mother succeeded in her claim that the defendant trust was negligent in failing to check her…
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…
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