2022 in Review: Expert Evidence under scrutiny

I’ve been taking a look at the assessments of reports undertaken by the Membership Committee and there are two areas that seem to cause more issues than others. The first is around instructions. Remember that you do need to make clear the instructions you have received from your instructing party. This is also a good method for checking to make sure you have answered all the queries asked of you.

5. Make sure you offer a range of opinion and, if you can’t, state why

The second area that seems to get marked down is the range of opinion with applicants not providing a range of opinion and not stating why they cannot give a range of opinion. Sometimes it is right that you cannot offer a range of opinion, but you should be stating why this is the case.

As the year draws to a close, I can’t help but think that it has been an interesting year for Expert Witnesses. There have been several high-profile cases which have reflected the best and worst in Expert Evidence. But one thing seems clear, the number of judgments which mention Expert Witnesses and their conduct is definitely on the rise. And unfortunately, the negative comments in judgments outweigh the positives.

But this is to be expected. It is normally when things go wrong that the Judge will comment on the conduct of the expert. And whilst we have highlighted many a judgment where this is the case, I am choosing to be positive and focus on my top ten takeaways for the year.

1. Always maintain impartiality

To borrow a line from a well-known Christmas song, “although it’s been said many times, many ways” ensure you always maintain your independence. If you are unsure whether you are straying, ask yourself – would I have the same opinion if I was instructed by the other side. Nothing harms your credibility more than being partisan.

2. Be credible and declare possible conflicts of interest

And on that note, be aware that the opposing side may try to attack your credibility so don’t give them any ammunition with which to take a shot. If you think there is a possible conflict of interest, raise this with your instructing party immediately and take advice.

It was nice to see a judge rejecting one such claim where counsel attacked an expert’s credibility (https://www.ewi. org.uk/News/attack-on-experts-credibilityrejected).

3. Take time to consider any unconscious biases which may impact on your opinion

When you are assessing a claimant, visiting a site, considering the evidence, are you unconsciously projecting your own biases into the case? Take time to find out about unconscious bias (https:// www.ewi.org.uk/News/ewi-in-conversationwith-frederico-singarajah-unconcious-bias) and how you can avoid it.

4. Make clear the substance of your instructions

6. Make sure your declarations at the end of your report are up to date Spend the time to make sure you are using the most up to date declarations. Doing so enables you to retain credibility. The wrong one could undermine you in court during cross examination.

If you are in any doubt, you can access supporting guidance from our knowledge hub at https://www.ewi.org.uk/ Knowledge-Hub

7. Remember that the Joint Statement is the Expert’s write up of their discussion Don’t be tempted to invite your instructing party or counsel to look at or make suggestions on the draft of the Joint Statement. This is your statement to assist the court in narrowing down the issues that are still in contention.

And if they ask to be involved, stay strong and tell them to step back.

Patricia Andrews & Ors v Kronospan Limited [2022] EWHC 479 (QB) and Gary Pickett v David Balkind [2022] EWHC 2226 (TCC) are both salutary reminders of what can happen if you do not heed the advice.

8. Be open – and get any communication with other parties in writing. Transparency and accountability are key: whatever is done needs to be done overtly.

9. Make sure you assist the court Remember that you are helping the court understand the issues. In his keynote speech at our conference this year, Lord Hamblen suggested the best way to achieve this was through clarity, structure, reasoning, and by building trust and confidence.

Some nice examples of where experts have done this include the following:

“He gave his evidence in a forthright and measured manner. He answered the questions put to him clearly accepting the limits of his knowledge in relation to certain matters. He made concessions in relation to certain items such as betterment to the boiler installation and the extent of the alleged furniture damage. I think that overall Mr. Lane was seeking to assist the Court and that he well understood that he had an independent role to perform.”

- Coldunell Limited V Hotel Management International Ltd

And congratulations to EWI Member, Jill Ferrie, who was mentioned in a recent judgment as being “a balanced and helpful expert”.

10. Keep up to date with the latest developments in Expert Evidence And finally…. Whilst you are all (I am sure) keeping up to date with the latest developments in your areas of expertise, make sure you also take time to consider the latest case updates in Expert Evidence. At the least keep an eye on our monthly e-newsletter to identify key things you need to be aware of. But don’t forget that EWI Members now have access to a wide range of older (but still highly relevant) pre-recorded webinars.

Keeping up to date with your professional development is an essential part of maintaining your credibility as an Expert Witness.

So with that I wish you every success as we head into 2023.

Simon Berney-Edwards EWI