Who writes your expert reports?

By CHRIS MAKIN chartered accountant, accredited civil mediator and accredited expert determiner

[A SILLY QUESTION, I know – but let’s persevere.

It is a rock-solid principle of litigation that the expert must be independent, and that their opinions must be their own. The

About Chris Makin

[CHRIS MAKIN was one of the first 30 or so chartered accountants to become anAccredited ForensicAccountant and Expert Witness –see www.icaew.com/about-icaew/find-a-chartered-accountant/find-anaccredited-forensic-expert.

He is also an accredited civil and commercial mediator and an accredited expert determiner. Over the last 30 years he has given expert evidence at least 100 times and worked on a vast range of cases.

For CV, war stories and much more go to the website at www.chrismakin.co.uk – now with videos! q leading case is Whitehouse v Jordan [1980] UKHL 12, where Lord Wilberforce said: “The report of the expert must be, and be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.”

Almost identical words were used by Mr Justice Cresswell in The Ikarian Reefer [1993] 2 Lloyd’s Rep 68 when, listing the seven duties and responsibilities of expert witnesses, he started with this: 1. Expert evidence presented to the Court should be, and should 1. be seen to be, the independent product of the expert 1. uninfluenced as to form or content by the exigencies of 1. litigation (Whitehouse v Jordan, [1981] 1 WLR 246 at 1. p. 256, per Lord Wilberforce).

And this same principle of independence is now in CPR at 35.3(2) and equivalent parts in the FPR and the CrimPrR.

But what happens if the solicitor tries to interfere with the expert who is developing and expressing his opinions?

There was a strident example of this – and its consequences – in the recent case of Patricia Andrews & Ors v Kronospan Ltd [2022] EWHC 479. This was a group action by 159 residents near to a wood processing plant at Chirk near Wrexham, who complained of nuisance from dust, noise and odour.

When the date for filing of the Joint Statement of Experts had been passed (by two years!) it emerged that there had been very frequent contact between the claimants’ solicitors and their expert. Some exchanges were merely procedural, but on many occasions the solicitors had received drafts of the joint statement and made substantial suggestions for amendment.

The defendant made an application for the claimants’ expert reports to be excluded – a very serious situation which would have

left them without vital expert evidence. The Master did consider this, but because there was no trial date yet fixed, and because the time wasted on the claimants’ side could be remedied by costs, he found that this expert’s evidence should be excluded and the claimant could appoint new experts.

The behaviour of the claimant solicitors and expert had wasted two years, and the expert’s fees – now wasted – had been £225,000. There would no doubt also be a costs order against the claimants for waste of defendant lawyers’ time. So this interference by the claimant solicitors in the expert process had wasted a great deal of time and money.

There were strong suspicions that a similar situation had arisen in the case of Frederik Tylicki v Graham Gibbons [2021] EWHC 3470 (QB). Interestingly, this concerned the 3.20 at Kempton Park on 31 October 2016, but it was a tragic story.

At the last right-hand bend, Gibbons was in the lead on Madame Butterfly and Tylicki was fast gaining on him, mounted on Nellie Deen. Gibbons had left a gap between his horse and the rail, and Tylicki tried to take advantage by passing him on the nearside. As Nellie Deen’s head came level with Madame Butterfly’s haunch, Gibbons pulled on the right-hand lead, thus closing the gap. Tylicki had to arrest his mount, but in slowing down, its front hoofs became entangled with Madame Butterfly’s rear legs. Tylicki was thrown, the horse ended up on top of him, and he is now tetraplegic. He – and Gibbons, for that matter – was a very experienced jockey, but he will not ride again.

The trial was on liability only: Was Gibbons aware that Tylicki was alongside? Did he deliberately pull the right-hand rein? Was this all fair in love and racing, or was it a deliberate act, careless as to whether Tylicki might be injured?

There was a stewards’ enquiry, which found just a few minutes after the race that Gibbons had not been negligent, but the court was not influenced by that. HHJ Karen Walden-Smith said she had seen the videos from all angles many, many times, as well as stills. To give you the punch line, she found that Gibbons was negligent, so there will be a trial on quantum, and I foresee a very considerable amount in damages awarded.

But this is not the point of our story, so let’s get back to litigation and expert witnesses.

There were three experts, two for the claimant and one for the defendant. We will concentrate on Mr Ryan Moore, expert on riding for Mr Tylicki. He, like most in the case, was a very experienced retired jockey.

There had been difficulty in finding experts on racing because jockeys tend not to be well educated. So many, like Mr Moore, came from Ireland as youngsters, worked as stable boys, and climbed the ladder to become highly regarded jockeys. How then was Mr Moore to write his expert report and comply with CPR 35, particularly 35.3(2)?

A novel method was used. The solicitor asked Mr Moore many questions, wrote out his answers, and built them into an expert report which was ostensibly written by Mr Moore. But it wasn’t his report. As Mr Moore said in evidence: “I ride horses. I don’t sit at a computer.” Mr Moore said that it had “...been made from notes made by the lawyers from what I have told them and in telephone calls.” One such call had even been when Mr Moore was on the touchline, watching his son in a school football match!

Unsurprisingly, there was a challenge from the defence that this was not an expert report at all, and that it should be ignored.

The judge considered matters very carefully, and even ordered disclosure of all the notes taken by the solicitor. She was very impressed with Mr Moore’s evidence and manner, particularly since he had never given evidence before, and she decided that this report was indeed “…the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.”

Don’t try this at home; it was a very exceptional case. Just instruct your expert properly – having chosen an expert who knows the ropes – and let them get on with it. q