The importance of independence: preserving the integrity of the Expert Witness discussion

We take a look at how the distinction between being an independent Expert Witness is crucial in a court case.

As an Expert Witness, your remit is clear: although you’re instructed by either the defendant or claimant, your obligation is to the court. You should be independent, not partisan. But ensuring you maintain that independence isn’t always straightforward.

As we reported back in March, a litigation case where an expert seeking input from solicitor led to a conclusion that the expert was not independent – resulting in £225,000 of evidence being revoked.

The ruling was deemed a “shockwave” by Recorder Simon Jackson KC during the Lessons from the Courts panel session at our June 2022 conference. “It’s a stark reminder [to Expert Witnesses] of what their duties are in terms on compliance with the rules and honouring the declarations which they make”, Jackson remarked.

So, what went so wrong in this case? And how can the Expert Witness community ensure they learn from the ruling to preserve their integrity and avoid something similar happening again?

Independent vs partisan

The case in question, Patricia Andrews & Ors v Kronospan Limited [2022] EWHC 479 (QB), was a group litigation claiming nuisance. It involved a group of residents complaining that the owners of a nearby timber plant were contaminating their homes with dust.

With dust a central part of the case, it comes as no surprise that the claimant’s solicitors instructed several experts in various areas of it, including Dust Analysis and Monitoring specialists.

After these Experts had been engaged for some time, the defendant’s solicitors became aware there had been contact between one of the claimant’s Dust Analysis and Monitoring experts and his instructing solicitors during the joint statement discussion period.

The expert in question had sent several drafts of the joint statement to the solicitors, seeking their views and input and received it from them, all without informing his Expert Witness counterpart.

Presiding over the case was Senior Master Barbara Fontaine, who stated in her judgment: “the primary concern, having seen the communications between the Claimants’ solicitors and [the expert], is that [the expert’s] approach strongly suggest that he regards himself as an advocate for the Claimants, rather than as an independent expert whose primary obligation is to the court.”

Not a clear-cut decision

To help reach her conclusion, Senior Master Fontaine examined two other cases involving misconduct by Expert

In the first case, BDW Trading Ltd v Integral [2018] EWHC 1915 (TCC), a defendant’s expert revealed during cross-examination that he had sent a first draft of his joint statement to his instructing solicitors and had received feedback, making some changes to his draft as a result.

The judge in that case acknowledged that while the expert’s behaviour was a serious transgression, he genuinely wasn’t aware his behaviour was inappropriate and his communication with solicitors didn’t affect his opinion in any way.

At the opposite end of the spectrum, in Dana UK Axle Limited [2021] EWHC 1413 (TCC) experts receiving technical input from the instructing party at every stage in the process without revealing that to the other party. The indiscretion, meanwhile, only came to light halfway through the trial. Such a flagrant disregard for the impartiality rule meant that the judge had no real option but to disallow the evidence.

Reflecting on her resulting judgement in the Andrews vs Kronospan case, Fontaine explained she concluded that, “the expert’s evidence should be excluded because the court could have no confidence in his ability to act in accordance with his obligation as an expert authority.”

Is it ever OK to be in communication with solicitors?

Discussion between experts and solicitors during the draft report stage is allowed. In fact, solicitors are usually involved to make sure they understand what’s being said and what each side’s case is. “That’s quite different from the joint statement process, which is an inviolable process where just the two experts discuss their views without outside interference”, explained Fontaine.

Referring to the Technology and Construction Court (TCC) guide and its relevance to other cases, Fontaine noted:

“It says while the party’s legal advisors may assist in identifying issues which the statement should address, they should not be involved in negotiating or drafting the experts’ joint statement […] unless there are serious concerns where the court may misunderstand or be misled by the terms of the joint statement.”

In such circumstances, solicitors from both sides must be involved.

Lessons from the courts

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

Remember that the onus should be on solicitors to behave appropriately and uphold their duty to the court too. So, if they try to get involved in drafting the joint statement, remind them they are not allowed to be involved.

Make sure your declarations at the end of your report are up to date, or it could undermine you in court during cross examination.

Focus on the issues at hand. You should encourage solicitors to provide you with a list of the key areas of contention which should be discussed but should not be inviting comment on what is said.

Senior Master Fontaine and other senior legal professionals discussed the topic of Expert Witness integrity and more at our June 2022 conference, Lessons from the Courts, which is available to purchase now at: https://www.ewi.org.uk/WebShop#!prod/894f610a-56db-ec11-bb3c000d3a0ccc1c/curr/GBP

Simon Berney-Edwards EWI