Wednesday, November 27th, 2019 posted in Expert Witness, Litigation, Opinion, Paul Sankey

Expert’s duties: independence and impartiality again

Or when Piri Piri burns your fingers…

~ by Paul Sankey, Enable Law

In a recent case concerning the wonderfully named Pepe’s Piri Piri Ltd[1] an expert got his fingers burned. He was criticised by the judge for failing to understand his duties and comply with them.

Experts’ duties: what the rules say

The rules are clear. An expert’s duty is to the court. The duty of experts is ‘to help the court on matters within their expertise’[2]. That duty ‘overrides any obligation to the person from whom experts have received instructions or by whom they are paid’[3].

Further:

  1. Expert evidence should be the independent produce of the expert uninfluenced by the pressures of litigation[4].
  2. Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate[5].
  3. Experts should consider all material facts, including those who might detract from their opinions[6].
  4. They should make clear when a question falls outside their expertise[7].

The question of bias

An expert may want to help the party instructing him or her – perhaps out of sympathy for their case. They may have an unconscious bias tending to support that case or to maintain on opinion for which the evidence is becoming less favourable. But their overriding duty is to the court.

An expert gets criticised

An accountant giving expert evidence in the Piri Piri case felt the heat when he was criticised by the judge at trial for failing to fulfil that duty.

The criticisms were:

  1. He acted as an advocate for the Defendant’s case – and this is a criticism that is repeated regularly in reported judgments.
  2. He gave evidence on matters outside his expertise.
  3. He made criticisms of the way the Claimant had conducted its case. This was (in the judge’s words) ‘more a critical commentary on the Claimant’s conduct of the litigation than an assessment of their claimed losses’.

When asked in cross-examination about his duty, he said that although his ultimate duty was to the court, where he was instructed by a particular party he would do his best to put that party’s case in the most favourable light. That was inconsistent with his duties under CPR Part 35. The judge’s words bear considering – they are clear comments on the duties of expert to maintain their independence:

‘It is not part of the duty of an expert to advance the case of the party instructing them, whether by advancing arguments of fact or law which are outside their expertise or by seeking to present that party’s case in a favourable light. An expert witness should present evidence which is uninfluenced by the pressures of litigation and contains independent assistance by way of objective opinion.’

That did not mean that he entirely rejected the expert’s evidence. But where there was a conflict between the two experts, the judge placed greater weight on the claimant’s expert.

Tips for experts

So here are some tips for experts.

  1. Understand your duty. The expert was clearly cross-examined about the nature of his duty. He got the answer wrong. The duty is clearly expressed in the Civil Procedure Rules and Practice Direction. If you cannot explain to the judge correctly what your duty is, you will undermine your evidence at the outset.
  2. Ask yourself the question, ‘would I give the same evidence if I was instructed by the other party?’ If the answer is ‘no’, think again.
  3. Answering ‘yes’ still does not necessarily mean you independent. Unconscious bias may be at work. You might want to look at a checklist provided by the Expert Witness Institute in ‘Towards Expert Witness Independence and Impartiality’ which tries to address this (see https://www.inspiremedilaw.co.uk/independent-expert-witnesses/ ).
  4. Avoid the language of advocacy. Leave that to the lawyers.

Unfortunately getting it wrong in a misguided attempt to promote one party’s case may well undermine your evidence, as it did in this case. In short, understand your duties and don’t get your fingers burned.

READ MORE BY PAUL SANKEY

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[1] Pepe’s Piri Piri Ltd & Anor v Junaid & Ors [2019] EWHC 2097

[2] CPR 35.3(1)

[3] CPR 35.3(2)

[4] PD 35.2.1

[5] PD 35.2.2

[6] PD 35.2.3

[7] PD 35.2.4(a)