Why an expert should not be hand-in-hand with their client

[BOND SOLON have pointed to a recent Family Court case that provides key commentary on the issue of expert impartiality. In the case of Gallagher v Gallagher, the judge found that the husband’s expert had effectively become part of that party’s legal team, acting in manner and mentality as an ’advocate’ rather than an independent expert.

The hearing was in relation to the wife’s application for financial remedies dated April 2020. In November 2020 the wife made a Part 25 application for the instruction of experts, including a forensic business accountant, a tax accountant and several surveyors.

At the Case Management Hearing on 25 May last year, Holman J gave his permission for two experts – Ms Longworth for the wife and Mr Singleton for the husband – to meet and produce a joint statement as to the husband’s business interests.

At the Financial Dispute Resolution hearing, Mr Justice Mostyn considered Mr Singleton, the husband’s expert, to be a ‘highly proficient, knowledgeable, intelligent and articulate accountant’ who ‘fully immersed himself’ in his instruction.

The judge also acknowledged the limits of expert impartiality, stating that: “Some might say that the forceful judicial demands for impartiality are tinged with unworldliness. It seems to me to be not unlikely that subconscious forces may well incline an expert, who is being handsomely paid by one of the parties, to give evidence favourable to that party.’’

In spite of that, though, he agreed with the wife’s barrister about Mr Singleton’s conduct. He stated that Mr Singleton lacked the impartiality required as an expert witness, and instead acted in a ‘strategic defensive manner’ that had ‘all the hallmarks of the mentality of an advocate’.

The judge said that Mr Singleton’s attendance throughout the hearing was ‘highly suggestive of de facto membership of the husband’s team’. He referred to Mr Singleton’s email to one of the husband’s witnesses, a Mr Kerins, about a possible comparable transaction, stating: “It is a great comparable and we can argue that the contracts…’’ That highlighted his perceived membership of the husband’s team.

His written evidence put forward figures which were ‘as low as he could tenably go without failing off the spectrum altogether’ and his interruptions of Ms Longworth were ‘forthright, abrasive and adversarial – even degenerating on one occasion’.

Mr Justice Mostyn made reference to Vernon v Bosley (No 1) [1996] EWCA Civ 1310. In that case, Thorpe LJ compared a legal case to a broad street, with the plaintiff walking down one side, the defendant on the other and the expert being ‘…ever mindful of the need to walk straight down the middle of the road and to resist the temptation to join the party from whom his instructions come on the pavement’.

He also referenced Lord Hamblen’s address to the EWI Conference, in which he said witnesses should refrain from becoming advocates themselves.

The judge viewed Mr Singleton’s evidence in light of his perceived bias. He disregarded some of the expert’s evidence but allowed others that he felt had been accurately recorded.

Bond Solon’s commentator concluded: “This family law case provides invaluable commentary for expert witnesses as to the manner of conduct, language and attitude that could be perceived by a judge to be lacking in impartiality.

“Whilst experts may be instructed by (and paid by) a party, it is of utmost importance that they do not consider themselves to be part of that party’s legal team. Their duty and obligation remain wholly to the court [for reference: Rule 35.3, Civil Procedure Rules; Rule 25.3, Family Procedure Rules; and Rule 19.2, Criminal Procedure Rules].” q • The full commentary on the case can be viewed at www.bondsolon.com/experts-mustavoid-walking-hand-in-hand-with-the-client/