Expert witnesses: lessons from recent cases

  • Published: May 09, 2019
  • Author: Paul Sankey, Partner, Enable Law

There are lessons for expert witnesses in several recent Court decisions – which I will take you through in this blog.

1. Failing to comply with directions

In Mayr and Others v CMS Cameron McKenna Nabarro Olswang LLP [2018] EWHC 3669 (Comm), an expert witness was debarred from giving evidence for the claimants after failing to engage in discussion with the defendant's expert, despite a direction to do so. The claimants argued that, as the expert was independent, he was not under their control. However, the judge found that, even if his failure to comply was not due to the claimant's instruction, he was at the very least aware of what he had done and should have made clear that this was unacceptable.

The lesson for expert witnesses is: do not disregard Court directions.

The lesson for solicitors is: make sure your expert understands the importance of complying with directions.

2. A late change of mind from the expert witness

In Bakrania and Another v Shah and Others [2019] EWHC 949 (Ch), the claimants' case turned on valuation evidence. The claimants' case collapsed when their valuer changed his mind and agreed with the opposing valuer's valuation of some land.

The lesson for experts is: don't put yourself in a position where you have to change your mind – put in the work to make sure you get the answer right the first time.

3. Not reporting on time

In X and Y (Delay: Professional Conduct of Expert) [2019] EWFC B9 HH, a paediatrician jointly instructed in family proceedings failed to report six months after she was instructed. She also failed to attend Court to explain the delay. There is particular importance in experts reporting promptly in family proceedings where the welfare of children or vulnerable adults is concerned. The judge described her conduct as unacceptable and criticised her in the following terms:

"I am deeply concerned about the way Dr Ward has behaved in this case. It does not meet the standards expected of an expert witness or the expectations of the court in this particular case. It cannot be allowed to pass without comment. That comment should be placed in the public domain."

The lesson for expert witnesses is: meet your deadlines, particularly where vulnerable people depend on you doing so or risk devastating public criticism.

4. Usurping the judge's function

In Prosser v British Airways plc [2018] EW Misc B13, an expert gave his opinion on the reliability of the account given by one of the parties. The judge disregarded those comments. Determining facts and assessing witness evidence is a matter for the judge and not an expert.

In the face of competing accounts, give alternative opinions based on the alternative accounts. The one qualification to this is that sometimes an account may be inconsistent with a matter within an expert's expertise. For instance, if a witness's account of events is inconsistent with the science and that science is within the expert's expertise, the expert witness can comment.

The lesson for experts is: you are not the judge – it is not for you to determine facts and you will annoy the judge if you try to do so.

Read more articles on this topic from Paul Sankey: 

Credible medical expert witnesses: the role, knowledge and legal obligations
How to be a better medical expert witness: 10 top tips
7 classic principles for expert witnesses



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