Lord Hamblen addresses the EWI conference ‘The modern expert: personal insights and current issues’ was the subject of Lord Hamblen of Kersey’s address at the Expert Witness Institute’s annual conference, held online on 20 May. The EWI’s Wiebke Morgan describes the main points of his talk.
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LORD HAMBLEN initially summarised his professional background and the various kinds of expert evidence which he had encountered, both as a barrister and as a judge. He further explained how he used to work with experts as a barrister, what he had found particularly useful in terms of expert assistance, and how he would seek best to deploy that assistance. In discussing his experience as a judge, he offered suggestions as to how an expert can best assist Lord Hamblen of Kersey judges, including some key ‘do’s and ‘don’ts’ based on his general experience. Finally, he addressed current issues relating to expert evidence as flagged up in recent case law. In terms of working with experts as a barrister, Lord Hamblen stated that the key issue was understanding. In order to be able to think on their feet in cross examining an expert a barrister needed to be able to think like an expert. His key ‘do’s’ were: clarity; structure; reasoning; and building trust and confidence. His absolute number one ‘don’t’ was to ensure that the expert is avoiding anything which might compromise their independence and impartiality. A second and related ‘don’t’ was to avoid being an advocate. It is counsel’s job to argue the case; that is not the role of the expert. Lord Hamblen’s advice to experts was to ‘make points, explain points, but do not argue them’. The third, and again related, ‘don’t’, according to Lord Hamblen, was: ‘know the limits of your expertise’. Lord Hamblen then proceeded to illustrate the importance of all
these ‘don’ts’ by selecting several recent cases regarding the proper approach to expert evidence. Despite the basic rules regarding expert evidence being well known, and the applicable principles changing little in recent times, Lord Hamblen noted that there has been a notable recent uptick in cases expressing concerns about inadequate expert evidence. He lamented the fact that recent case law suggests that the principles set out in the Ikarian Reefer (now summarised in CPR 35) are frequently not being adhered to. The principles are being duly recited, but not acted upon. Finally, he discussed current case law under the headings of: partiality; relevant expertise; conflicts of interest; and failure to comply with expert duties. He highlighted recent cases with relevant quotes from the judgements. Lord Hamblen concluded that he hoped that the personal insights he had provided and the summary of recent case law would be a helpful basis for thought and discussion at the conference and that it would provide some guidance to those in the important role that they perform as experts. He pointed out that more and more cases seem to involve experts of one kind or another and that they play a very important role in dispute resolution, whether that be through settlement, mediation, arbitration or litigation. q • The full report of Lord Hamblen’s speech can be read at www.ewi.org.uk, from where recordings of the conference can be purchased.
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