Thursday, September 3rd, 2020 posted in Expert Witness, Litigation, Opinion, Paul Sankey

Can an Expert be an Advocate?

~ by Paul Sankey, Enable Law

A recent case

The issue usually arises where an expert uses language appears to be advocating one party’s case rather than giving independent evidence to assist the court. However, in a recent tax case[1] the advocate sought to rely on his own expert evidence, having previously submitted a valuation report. Rather unsurprisingly the judge ruled that the same person could not perform both roles.

The judge pointed out that the distinction between an advocate and a witness is crucial. He made reference to the Civil Procedure Rules but also to the older authorities on which Part 35 is based. He gave 3 reasons that an expert cannot be an advocate.

 

  1. Expert evidence given to the court should be (and should be seen to be) the independent product of the expert uninfluenced by the exigencies of litigation[2].
  2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within their expertise[3].
  3. CPR PD 35 para 2.2 expressly says that experts should assist the court by providing objective, unbiased opinions…and should not assume the role of an advocate.

 

He regarded those authorities are binding and ‘an absolute bar’ to an advocate acting also as an expert witness.

In fact, the report was in any event deficient and its contents tainted by an apparent lack of knowledge of the duties owed by an expert to the tribunal. The deficiencies included the failure to provide a statement of truth and a statement that the expert understood and had complied with his duties.

The decision itself is hardly surprising, even if the fact that the issue arose at all is. The distinction between advocate and expert witness is fundamental. The roles are very different. An expert is to assist the court and give independent, objective evidence. That is not compatible with advocacy.

The lesson for experts is not so much that they should not appear before the court as an advocate – which they are unlikely to do. But it may be a helpful reminder that in giving evidence they should not stray from their independence and give the impression that they are arguing a case.

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[1] Neil Picklessharon Pickles v Revenue and Customs [2020] UKFTT 195 (TC)

[2] National Justice Campania Naviera SA v Prudential Assurance Co Ltd (the “Ikarian Reefer”) [1993] 2 Lloyd’s Rep. 68 (Comm Ct), citing Whitehouse v Jordan [1981] 1 WLR 246 at 256.

[3] Ibid, citing Pollivitte Ltd v Commercial Union Assurance Company PLC [1987] 1 Lloyd’s Rep 379 at 38