Trial is by Judge, not expert

There are lots of things you need to get right when you are party to a civil dispute, but often appointing a knowledgeable expert witness is a good place to start. Get the expert witness wrong and there could be disastrous and costly consequences waiting for you down the track. 

2021 has seen a flurry of judicial comment criticising expert reports. So what are some of the things you need to consider in order to get it right?

1. Finding an expert who has the specialist knowledge required for the case is mandatory as they are likely to give evidence on, for example, technical or scientific matters, or specialist practice or procedure. Another consideration is to ask yourself whether the expert has experience of being an expert witness. Part 35 of the Civil Procedure Rules contain strict procedures in relation to expert evidence and the Civil Justice Council’s Guidance for the Instruction of Experts in Civil Claims (2014) needs to be adhered to. It is of paramount importance your expert has working knowledge of these rules and recent experience of being in court (virtual or in-person). For more information on virtual hearings see the Academy of Experts 2020 ‘Remote & Virtual Hearings Guidance for Experts’.
2. ‘An expert’s responsibility is to give such evidence to the court impartially on the matters within their expertise – the White Book 2021’. A key thing to remember is that the expert is there to assist the court, not the party instructing them. While the case of The Ikarian Reefer hammers home this point, the 2021 White Book acknowledges that it ‘remains apparent that this obligation is breached far too often by experts to the detriment of the party instructing them.’ Ultimately it is in your interests that the expert abides by their duties to the court. So, for example, caution needs to be exercised if you are minded to instruct an expert who is familiar to you or who you have previously instructed. In the case of Bank of Ireland UK Plc v Watts Group Plc [2017] EWHC 1667 it was held that the banks’ expert was not independent as the bank had provided most of the expert's work over the years. Why is this important to you? Refusal of permission to adduce expert evidence as demonstrated by the 2021 case of Dana UK Axle Ltd v Freudenberg FST GmbH [2021] EWHC 1413 (TCC), and the imposition of indemnity costs on the instructing party are all sanctions which can be imposed by a court when there has been a failure of the expert to comply with their duties. 
3. Permission of the court to adduce expert evidence is always required. If you have that permission you may think you have a win on your hands if the other party fails to produce any evidence challenging or contradicting the expert’s opinion. However, the 2021 Court of Appeal decision of Griffiths v Tui (UK) Ltd [2021] EWCA Civ 1442 (07 October 2021) offers a stark reminder that the court is not bound to accept the evidence of the only expert witness standing. As Lady Justice Asplin made clear in that case        'There is no rule that an expert's report which is uncontroverted and which complies with CPR PD 35 cannot be impugned in submissions and ultimately rejected by the judge.' - Lady Justice Asplin. 

Ensuring the expert witness knows the court rules, abides by their duties and actually produces a report is a good start. Instructing the specialist Dispute Resolution team at Burges Salmon is an even better one!

'While The Ikarian Reefer stressed the fact that experts are not to act as advocates for the party instructing them, it remains apparent that this obligation is breached far too often by experts to the detriment of the party instructing them.' - White Book 2021

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