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EXPERTS UNDER FIRE - AT LAST! (THE SECOND BARREL)

AN ARTICLE by Peter Scrafton FIRRV, FCIArb, MRSA(Hon) Solicitor (Non-Practising)

April 2012.

Last time, I left readers dangling over the abyss of the realisation that, when working as expert witnesses, they can now be sued, successfully, for negligence. They still cannot be sued for what they say when they are in the witness box - legal privilege prevents them, or their client’s advocates, from being sued in defamation, for to allow such an action to be brought could allow the litigant with deep pockets to bully a witness (or an advocate, for that matter) into being less than absolutely frank.

 

A witness, giving evidence, is under oath to tell “…the truth, the whole truth and nothing but the truth”. These are old and, some may think, hackneyed words, but nonetheless powerful for their old age. A witness must not be constrained from utter frankness in the giving of evidence to the Court or Tribunal.

 

Likewise, the witness has an overriding duty to assist the Court or Tribunal to reach the right and just answer in each particular case. The Courts will not let the witness be attacked for this (see the judgment of Lord Dyson in Jones –v- Kaney [2011] UKSC 13, cited in the preceding part of this article). However, the expert is now at risk of being on the wrong end of an action in contract and/or negligence if he or she is negligent in their preparation for trial. The way to this conclusion by the Supreme Court is clearly signalled by Chadwick LJ in Stanton –v- Callaghan [2000] QB 75 (again cited earlier in this article). It also seems, if I may say so, both a fair outcome to the case and an outcome which professional people, as a whole, might reasonably have expected.

 

In the context of the giving of professional advice, we need to remember that the professional enters into a contract with the client for the provision of professional services - and that client has a reasonable expectation that the professional will provide those services to the client in a prompt, efficient manner, taking all relevant matters into account, dismissing matters which do not appear to be relevant, and giving a balanced and unbiased view of the problem, overall.

So, perhaps it might be just as well to remind ourselves of some of the basics of the role of the expert. When doing so, it is always as well to bear in mind the basic rules and guiding principles which, although fundamentally the same in all jurisdictions, may vary a little from forum to forum.

 

The best-known modern statement of the principles to which the expert must adhere is that in the 1993 case known as “The Ikarian Reefer” ([1993] 2 Lloyd’s Rep. 68), which was tried by Cresswell J, and in which he stated what he saw as the guiding principles for expert witnesses. When the case reached the Court of Appeal, those principles were endorsed and subsequently commended by Lord Woolf in his report on the civil justice system in England and Wales. Those principles have been cited, with approval, in subsequent cases, although they have been subject to a number of criticisms.

 

The law is a living and evolving thing – however, and in post-Woolf days has been updated and re-stated by Judge John Toulmin CMG, QC, in the case of Anglo Group plc –v- Winther Brown & Co Ltd and BML (Office Computers) Ltd, in which he was highly critical of some of the expert evidence put before him. He said:

 

1. An expert witness should at all stages in the procedure, on the basis of the evidence as he understands it, provide independent assistance to the Court and the parties by way of objective unbiased opinion in relation to matters within his expertise. This applies as much to the initial meetings of experts as to evidence at trial. An expert should never assume the role of an advocate.

 

2. The expert’s evidence should normally be confined to technical matters on which the court will be assisted by receiving an explanation, or to evidence of common professional practice. The expert witness should not give evidence or opinions as to what the expert himself would have done in similar circumstances or otherwise seek to usurp the role of the judge.

 

3. He should co-operate with the expert of the other party or parties in attempting to narrow the technical issues in dispute at the earliest possible stage and to eliminate or place in context any peripheral issues. He should co-operate with the other expert(s) in attending ‘without prejudice’ meetings as necessary and in seeking to find areas of agreement and to define precisely areas of disagreement to be set out in the joint statement of experts ordered by the Court.

 

4. The expert evidence presented to the Court should be, and be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of the litigation.

 

5. An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.

 

6. An expert witness should make it clear when a particular question or issue falls outside his expertise.

 

7. Where an expert is of the opinion that his conclusions are based on inadequate factual information he should say so, explicitly.

 

8. An expert should be ready to reconsider his opinion and, if appropriate, to change his mind when he has received new information or has considered the opinion of the other expert. He should do so at the earliest opportunity.

 

Three of these points are common to the principles of Cresswell J, three more correspond closely, but nos 2 and 3 are new, and it remains to be seen whether they will be adopted, widely.

Apply those principles, and the strict requirements of Pt. 35, Civil Procedure Rules, the protocol on the instruction of expert witnesses, the Practice Directions of the Lands Chamber, the current Practice Statements and Guidance Notes of the RICS, and the IRRV’s Code of Conduct, and you won’t go far wrong!

 

One matter is of particular relevance to rating valuers (and – all right, I admit to a job demarcation point), and that is that the roles of expert witness and advocate do not mix, even though, with a lot of finagling, they may flow in the same channel in Valuation Tribunals. The role of the expert is set out above, clearly and succinctly - that of the advocate is very different and, some would say, incompatible with the role of the expert witness. The Lands Chamber will allow it only rarely (and then with misgivings).

 

For the role of the advocate, as Dr Johnson put it, nearly 250 years ago, is to do for his client all that the client would do for himself, if he could, save that the advocate has, of course, the same overriding duty to the Court as the expert witness. The lawyer must refer to all relevant legal authority, seeking to distinguish it if it does not support his client’s case, and he must make all submissions which are properly arguable in support of that case, although he does not have an overriding duty to reveal unhelpful facts (his opponent or the Bench will do that!) The advocate can refer to the expert’s evidence, but he cannot add to it or offer any of his own, unless the Court or tribunal invites it.

 

The two roles are indeed, very different, and an expert seeking to act as advocate also, should cover himself or herself against future problems by obtaining the client’s written permission to do so, in advance, taking care to point out the potential adverse cast which may be placed on the expert evidence by an opponent or by the tribunal, if the advance into the dual role is not made with the greatest of caution.

 

Therefore, play it straight and by the books of rules. Stray not from the boundaries of your expertise, nor from the advice of the judges. Exercise all diligence, skill, experience and thoroughness, with strong, independent judgment and proper prudence, and all should be well. Should you suspect the presence of one or more of my brethren in the water below you, or worse, should you see our dorsal fins cutting towards you, think quickly and carefully, and take the appropriate action, immediately! Remember that honesty is ever the best policy, and we may yet swim away, hungry.

 

©J.P. Scrafton, 2012

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